| Clavel v Savage (NSWCA) – malicious prosecution
– delay – credit - failure to prove lack of reasonable cause for prosecution – appeal
dismissed |
| Caltex Australia
Petroleum Pty Ltd v Troost (NSWCA) – guarantee and indemnity – respondent bound by clauses constituting
“Guarantee and Indemnity by Directors” |
| Liu v The Age Company
Pty Ltd (No 2) (NSWSC) – defamation – preliminary discovery order stayed |
| National Australia
Bank Ltd v C & O Voukidis Pty Ltd (No. 2) (NSWSC) – evidence –
client legal privilege – privilege not waived by disclosure of material in
affidavit |
| Samsung C & T
Corporation v Laing O’Rourke Australia Construction Pty Ltd (WASC) – contractor
granted injunction for delivery to it of construction materials retained by
subcontractor |
| B & T
Constructions (ACT) Pty Ltd v Construction Occupations Registrar (ACTCA) – building and
construction –order for rectification of defective or incomplete building work –
appeal dismissed |
| Wilson v The State of
Queensland (QSC) – worker’s compensation – bankrupt refused leave to
proceed in strike-out action in respect of statement of claim |
| Summaries With Link (Five Minute Read) |
Clavel
v Savage
[2015] NSWCA 61
Court of Appeal of New South Wales
Macfarlan & Emmett JJA; Sackville AJA
Malicious prosecution – appellants
commenced proceedings against former neighbours seeking damages for intentional
inflection of emotional distress – appellants also sued State for malicious
prosecution and collateral abuse of process – primary judge found in favour of
defendants - appellants appealed – delay - held: substantial delay between hearing
of evidence and delivery of judgment did not necessarily indicate findings of
fact unsafe – even if primary judge’s assessment of credibility flawed, first
appellant’s credit not material to conclusion appellants had not demonstrated
lack of reasonable and proper cause to initiate prosecutions – no error in
finding appellants failed to prove lack of reasonable cause for prosecution –
no error in finding claims for collateral abuse of process not established –
appellants did not advance any cogent reason for concluding primary Judge
misapplied relevant principles or improperly exercised discretion as to costs –
appeal dismissed.
Clavel
|
Caltex
Australia Petroleum Pty Ltd v Troost
[2015] NSWCA 64
Court of Appeal of New South Wales
Meagher, Barrett & Emmett JJA
Guarantee and indemnity - company indebted
to Caltex - Caltex claimed respondent liable to pay amount owing to company by reason
of guarantee and indemnity signed by him - Caltex sued respondent for balance
owed by company - loan application form called “Guarantee and Indemnity by
Directors” divided into two columns with two signature blocks - respondent
signed only one signature block - trial judge found respondent’s liability
under guarantee clause discharged by variation in terms and conditions and that
respondent never bound by indemnity clause because he had not signed indemnity in
right-hand column - Caltex contended trial judge ought to have found respondent
bound by indemnity clause - Pt 2K.2 Corporations
Act 2001 (Cth) - whether indemnity clause separate from guarantee clause - held:
author of documentation intended guarantee and indemnity section create only
one obligation for any director who signed that section - trial judge erred in
concluding respondent not bound by clauses constituting “Guarantee and
Indemnity by Directors” - contentions
advanced on respondent’s behalf rejected - appeal allowed.
Caltex
|
Liu v
The Age Company Pty Ltd (No 2)
[2015] NSWSC 276
Supreme Court of New South Wales
McCallum J
Discovery – defamation – plaintiff sought
preliminary discovery orders against proprietor of newspaper and journalists to
ascertain identity of sources for purpose commencing action against them –
Court ordered discovery of all documents which were or had been in their
possession, which related to identity or whereabouts of sources – defendants sought
to have preliminary discovery order stayed on basis they now undertook not to
rely on defence of qualified privilege and that preliminary discovery order not
necessary to provide plaintiff with effective remedy – plaintiff claimed
application was an abuse of process – held: Court persuaded that upon abandonment
of qualified privilege defence, plaintiff had a remedy against defendants which
was “no less effective” than an action against the source – application was not
an abuse of process – preliminary discovery order stayed.
Liu
|
National
Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2015] NSWSC 258
Supreme Court of New South Wales
Davies J
Evidence – client legal privilege – fourth
defendant filed affidavit in support of motion to file amended cross-claim –
affidavit concerned former solicitor’s advice – plaintiff issued subpoena to
solicitors – fourth defendant claimed privilege over material sought to be
produced – plaintiff asserted privilege had been waived by parts of fourth
defendant’s affidavit – held: privileged material had not been used to fourth
defendant’s advantage and was not relevant to remaining issues in proceeding – disclosure
of material by service of affidavit did not bring about inconsistency which
resulted in waiver of the privilege – privilege not waived.
National
|
Samsung
C & T Corporation v Laing O’Rourke Australia Construction Pty Ltd [2015] WASC 83
Supreme Court of Western Australia
Edelman J
Injunction – plaintiff contractor sought
urgent interlocutory injunction requiring defendant to deliver up construction
materials it needed to performance of duties as principal on mining project – contract
materials retained by subcontractor pending payment of claim for work done - serious
question to be tried – strength of plaintiff’s case that it owned materials – prejudice
– balance of convenience - held: plaintiff had a very strong case that title to
construction materials had passed to it – respondent’s case very weak – balance
of convenience strongly favoured grant of injunction – injunction granted.
Samsung
|
B
& T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2015] ACTCA 7
Court of Appeal of the Australian Capital
Territory
Murrell CJ, Gilmour J & Cowdroy AJ
Building and construction – ACT Civil and
Administrative Tribunal affirmed registrar’s decision to issue a rectification
order to appellant under Pt 4 Construction
Occupations (Licensing) Act 2004 (ACT) – rectification order directed appellant
to undertake rectification works to building – primary judge dismissed
appellant’s appeal – Pt 4, ss4, 16, 31, 33A, 34, 35, 36, 38, 40, 55, 117 &
121 Construction Occupations (Licensing)
Act 2004 (ACT) – held (by majority): Court did not wrongly assume there was
evidence of loss and damage under s36(1)(a) - Court did not misunderstand proper
role of the public record, constituted by approved building plans – contention rejected
that primary judge erred in assuming owners corporation could represent
individual unit owners - no error in
approach of primary judge in understanding of nature of appeal – appeal dismissed.
B&T
|
Wilson
v The State of Queensland
[2015] QSC 56
Supreme Court of Queensland
Jackson J
Workers compensation – applicant teacher
made claim for rescission of settlement deed in reliance on innocent
representation, and claim for wrongful termination of employment by first
respondent – applicant went bankrupt prior to hearing of application to strike
out claim - whether claims were for personal injury or wrong done to applicant –
whether to grant leave to proceed in strike-out application under Bankruptcy Act 1966 (Cth) - held: neither
of the two categories of claim was an
action in respect of any personal injury or wrong done to plaintiff - proceeding was stayed by operation of s60(2) –
Court unable to proceed to hear
application for determination of whether the statement of claim should survive or
proceeding be terminated – leave not granted to proceed under r72 Uniform Civil Procedure Rules 1999 (Qld)
– application for leave to proceed declined.
Wilson
|
