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

Weekly Law Review

Thursday, 26 February 2015

Executive Summary (One Minute Read)
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Wilmink v Westpac Banking Corporation (FCAFC) – loan statement incapable of being converted into a bill of exchange – claim against bank failed (I B)
Tran v Pu (FCA) - bankruptcy - review of sequestration order - deed of settlement failure to carry out de novo hearing - appeal allowed - matter remitted (B G)
Attorney General of NSW v Homeland Community Ltd (NSWCA) - trusts - company did not hold property on charitable trust (B)
White v Johnston (NSWCA) - assault and battery - dentist’s treatment was not assault on patient - matter remitted confined to alternative negligence claim (I)
BlueScope Steel Ltd v Cartwright (NSWCA) – work injury damages – truck accident - excessive speed – BlueScope Steel and insurer not liable – appeal allowed (I B C)
McGeown v NSW Land and Housing Corporation (NSWCA) – landlord and tenant – breach of lease by ceasing personally to occupy premises – appeal dismissed (I B)
Re RB, a protected estate family settlement (NSWSC) - approval of family settlement including statutory Will relating to protected person (B)
Dimarti v Dimarti (NSWSC) – contract of compromise – no unconscionable conduct or unjust contract – application to set aside contract of compromise dismissed (B)
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 (I B C)
Traivelog Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement) (QSC) - corporations - voluntary administration - deed of company arrangement not set aside (B)
West Coast Council v Coverdale (No 2) (TASFC) - real property - Valuer-General obliged to value lands subject of marine farming leases - appeal allowed (I G)
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.
Wilmink (I B)
[From Benchmark 26 February 2015]
Tran v Pu [2015] FCA 97
Federal Court of Australia
Beach J
Bankruptcy - appellant’s estate sequestrated pursuant to Registrar’s order - sequestration order made on creditor’s petition filed by respondent - application for review of sequestration order dismissed by Federal Circuit Court judge - primary judge held deed of settlement was a bar to application for review - held: no private contractual bar could foreclose proper application of s52 Bankruptcy Act 1966 (Cth) - primary judge did not engage in task of a rehearing de novo or engage in task required under s52 - appeal allowed - matter remitted.
Tran (B G)
[From Benchmark 24 February 2015]
Attorney General of NSW v Homeland Community Ltd [2015] NSWCA 15
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Sackville AJA
Trusts - Attorney General of NSW sought declaration that respondent company held property upon a charitable trust for purposes identified in deed - primary judge dismissed proceedings - Attorney General appealed - held: primary judge did not err in permitting company to withdraw concession that it did not contest validity of charitable trust and to amend defence so as to withdraw admission it was bound by a trust - finding that company bound by trust required finding that it took transfer to it with notice that trustees intended it to hold property on trust - primary judge did not err in declining to make that finding - appellant’s application to adduce further evidence refused - no significant prospect a different outcome would have ensued - appeal dismissed.
Attorney General of NSW (B)
[From Benchmark 19 February 2015]
White v Johnston [2015] NSWCA 18
Court of Appeal of New South Wales
Barrett, Emmett & Leeming JJA
Assault and battery - respondent patient alleged appellant dentist’s treatment constituted assault and was negligently performed - primary judge found dentist had committed assault and battery on patient - dentist contended evidence did not establish absence of therapeutic purpose in treatments she performed, that primary judge erred in relying on evidence admitted to demonstrate tendency to charge for services not performed, and in waiving notice requirement - appellant also contended exemplary damages were excessive - held: evidence did not establish absence of therapeutic purpose - awarding of damages in error - decision to admit evidence relating to malpractice overturned - matter remitted to District Court confined to alternative claim in negligence.
White (I)
[From Benchmark 20 February 2015]
BlueScope Steel Ltd v Cartwright [2015] NSWCA 25
Court of Appeal of New South Wales
Beazley P; Ward & Emmett JJA
Work injury damages - workers compensation - motor vehicle accident - employer contracted with steel manufacturer for transport of steel in containers - truck driver was driving prime mover with attached trailer containing heavy container - truck driver claimed damages for injuries when trailer lurched and rolled - Court held accident caused by tipping of unstable load and that both manufacturer and employer breached duty of care to truck driver - manufacturer had primary liability due to its inadequate packing system, which employer was contractually required to follow - liability apportioned at 85% for steel manufacturer - 15% for employer - held: accident would not have occurred unless prime mover travelling at speed in excess of limit - truck driver failed to establish inadequacy of wedges caused accident - truck driver entirely responsible for injuries - appeal allowed.
BlueScope Steel Ltd (I B C)
[From Benchmark 25 February 2015]
McGeown v NSW Land and Housing Corporation [2015] NSWCA 23
Court of Appeal of New South Wales
McColl, Macfarlan & Sackville AJA
Landlord and tenant - parties entered lease in respect of residential unit - applicant sought leave to appeal from decision of Appeal Panel of New South Wales Civil and Administrative Tribunal to dismiss appeal from Tribunal’s termination of residential tenancy agreement on basis applicant had ceased personally to occupy the premises - Appeal Panel upheld Tribunal’s decision that applicant was in breach of lease and that respondent entitled to order requiring applicant to give up possession - construction of lease - ceased personally to occupy the premises - held: at time respondent served Notice of Termination, applicant had been incarcerated for about eight months - applicant had ceased to be in personal occupation of premises and thereby breached the lease - appeal dismissed.
McGeown (I B)
[From Benchmark 25 February 2015]
Re RB, a protected estate family settlement [2015] NSWSC 70
Supreme Court of New South Wales
Lindsay J
Wills - succession - protected estate - application for approval of family settlement concerning estate of defendant - defendant was a protected person under s38 NSW Trustee and Guardianship Act 2009 (NSW) - statutory Will - family provision releases - lost capacity case - exercise of protective jurisdiction - management and administration of property - held: orders made for approval of family settlement including statutory Will relating to protected person.
Re RB, a protected estate family settlement (B)
[From Benchmark 20 February 2015]
Dimarti v Dimarti [2015] NSWSC 97
Supreme Court of New South Wales
Lindsay J
Contract of compromise – defendant sought orders that consent orders and underlying agreement for compromise be set aside because they were procured by plaintiff’s unconscionable conduct within meaning of ss20, 21 and 22 of the Australian Consumer Law – defendant also contended contract for compromise was an unjust contract within meaning of s7 Contracts Review Act 1980 (NSW) – defendant contended his medical condition operated against full participation in processes leading to entry of consent orders - held: no unconscionable conduct – no unjust contract - defendant gave fully informed consent to contract of compromise he entered and orders made by Court – motion dismissed.
Dimarti (B)
[From Benchmark 24 February 2015]
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 (I B C)
[From Benchmark 26 February 2015]
Traivelog Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement) [2015] QSC 27
Supreme Court of Queensland
P McMurdo J
Corporations - voluntary administration - creditors sought to set aside deed of company arrangement executed by first respondent company - reg 5.3A.07 Corporations Regulations 2001 (Cth) - ss445D, 447A & 513B Corporations Act 2001 (Cth) - delay - held: no ground to set aside DOCA established under s445D(1)(a) & (b) - Court not persuaded DOCA unfairly prejudicial or unfairly discriminatory - application heard more than five months after execution of DOCA, during which time the company continued to trade with consequence those who became creditors, contractors or investors in that period would be likely to be prejudiced from orders sought - application dismissed.
Traivelog Pty Ltd (B)
[From Benchmark 23 February 2015]
West Coast Council v Coverdale (No 2) [2015] TASFC 1
Full Court of the Supreme Court of Tasmania
Tennent, Escort & Pearce JJ
Real property - Council sought declaration that Valuer-General obliged to keep and maintain valuation rolls and to provide valuation lists to Council including particulars of ownership and values of lands subject of marine farm leases - leases were granted in respect of areas in Macquarie Harbour pursuant to Marine Farming Planning Act 1995 (Tas) - Council claimed primary judge erred in failing to determine grant of each of the marine farming leases created an interest in land which was rateable pursuant to section 87(1) Local Government Act 1993 (Tas) - statutory construction - held (by majority): seabed and waters of Macquarie Harbour were Crown land for the purposes of Crown Lands Act 1976 (Tas) - they were Crown lands that are liable to be rated because they were not exempt - Valuer-General under duty to value lands the subject of the leases - appeal allowed.
West Coast Council (I G)
[From Benchmark 23 February 2015]
Executive Summary
Summaries With Link
Where They Lived
By Thomas Hardy
         Dishevelled leaves creep down
         Upon that bank to-day,
Some green, some yellow, and some pale brown;
         The wet bents bob and sway;
The once warm slippery turf is sodden
        Where we laughingly sat or lay.
        The summerhouse is gone,
        Leaving a weedy space;
The bushes that veiled it once have grown
        Gaunt trees that interlace,
Through whose lank limbs I see too clearly
         The nakedness of the place.
        And where were hills of blue,
        Blind drifts of vapour blow,
And the names of former dwellers few,
         If any, people know,
And instead of a voice that called, “Come in, Dears,”
         Time calls, “Pass below!”
Thomas Hardy