A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Thursday, 26 February 2015

Executive Summary (One Minute Read)
Wilmink v Westpac Banking Corporation (FCAFC) – loan statement incapable of being converted into a bill of exchange – claim against bank failed
Barnes v Forty Two International Pty Ltd (No 2) (FCAFC) - costs - rejection of Calderbank offer and walk away offer not unreasonable - indemnity costs refused
Linke v TT Builders Pty Ltd (FCA) – costs – failure to comply with implied terms of offer of compromise
Griffin Energy Group Pty Limited (Subject to DOCA) v ICICI Bank Ltd (Singapore Branch) (NSWSC) – standby letters of credit – sale agreement - conditions to enable vendor to demand payment could not be met
Cox v Wettenhall (VSC) – share purchase agreement – dispute resolution provision - no error in contract for expert determination – claims dismissed
Marinis v Prendegast (WASC) – discovery – privilege – non-government documents not protected by public interest immunity
Summaries With Link (Five Minute Read)
Wilmink v Westpac Banking Corporation [2015] FCAFC 17
Full Court of the Federal Court of Australia
Foster, Yates & Gleeson JJ
Bills of exchange - appellants claimed damages against bank based on alleged default by bank under purported bill of exchange - primary judge concluded purported bill of exchange was not a bill within meaning of Bills of Exchange Act 1909 (Vic) – appellants contended primary judge erred in finding that a loan statement was incapable of conversion to a bill of exchange in s25 – appellants also claimed primary judge denied them procedural fairness by hearing proceeding on the papers – held: loan statement did not satisfy requirement under s25 of a simple signature on a blank stamped paper – loan statement not a document capable of being converted into bill of exchange – no denial of procedural fairness in delivering judgment without oral hearing – appeal dismissed.
Barnes v Forty Two International Pty Ltd (No 2) [2015] FCAFC 19
Full Court of the Federal Court of Australia
Siopis, Flick & Beach JJ
Costs - Court allowed appeal in proceedings - appellants submitted they were entitled to indemnity costs in relation to trial costs on basis of Calderbank offer or alternatively offer of compromise made before commencement of trial - held: respondents’ refusal to accept Calderbank offer did not justify order for indemnity costs - respondents not given reasonable time within which to respond - refusal not unreasonable - offer of compromise would have been more favourable to respondents in terms of costs than that ultimately achieved - however respondents did not act unreasonably in refusing offer - proceedings did not permit straightforward assessment of risk - respondents’ claims not without merit - indemnity costs refused - costs orders made on usual party-party basis.
Linke v TT Builders Pty Ltd [2015] FCA 111
Federal Court of Australia
White J
Costs – offer of compromise – proceedings concerned applicant’s claim for damages in respect of defective building work and claim for damages for misrepresentation by land agent – parties agreed on compromise – applicant accepted offer of compromise – applicant sought orders pursuant to r25.10 Federal Court Rules on basis of respondents’ failure to comply with offer’s terms - delay - held: respondents failed to comply with implied terms of offer to formulate their costs pursuant to offer and to respond to applicant’s formulation of his costs – applicant entitled to benefit of compromise in timely way.
Griffin Energy Group Pty Limited (Subject to DOCA) v ICICI Bank Ltd (Singapore Branch) [2015] NSWSC 87
Supreme Court of New South Wales
Hammerschlag J
Standby letters of credit – dispute concerning operation of three standby letters of credit issued on 28/2/11 – each letter of credit had maximum liability of $50 million and on its face was to expire on 1/3/15 – letters of credit issued to secure final instalment under sale agreement for sale of shares in companies – sale shares represented underlying interest in coal mine – whether conditions to enable plaintiff to demand payment under letters of credit could be met - International Standby Practices (ISP98) - provision for extension of date for timely presentation where last day for presentation not a business day – requirement of declaration that amount due and payable and delivery of drafts - held: letters of credit not capable of being security for payment of last instalment – summons dismissed.
Griffin Energy Group Pty Limited
Cox v Wettenhall [2015] VSC 38
Supreme Court of Victoria
Judd J
Contract for expert determination – share purchase agreement - dispute resolution - plaintiffs were vendors of shares under share purchase agreement – second defendant was purchaser - plaintiffs sought declaration that an expert determination made by first defendant under the agreement was of no effect - expert had been appointed by parties to resolve dispute concerning calculation of third tranche of purchase price – held: vendors failed to establish determination did not conform with contract, or any breach of contract by expert, or any error in expert’s determination – claims against defendants dismissed.
Marinis v Prendegast [2015] WASC 69
Supreme Court of Western Australia
Master Sanderson
Discovery - privilege - plaintiff sought pre-action discovery against defendants - defendants claimed public interest privilege over certain documents - held: public
interest immunity was restricted to what must be kept secret for protection of government - no basis for defendants to claim public interest immunity - documents did not form part of government or quasi-government - plaintiff entitled to inspect documents.