Banking Thursday, 26 March 2015 View in browser

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


Executive Summary (One Minute Read)
Police & Community Youth Clubs NSW Ltd v Refurb Interiors Pty Ltd (in liq) (NSWCA) - claim for debt owed under building contract - security for costs refused - application for leave to appeal dismissed
Jarrold v Registrar of Titles (VSCA) - real property - negligence - alleged forged signature on power of attorney - credit - new trial
P’Auer AG v Polybuild Technologies International Pty Ltd (VSCA) - contract - commission for sale of business - ‘one off’ transaction - inferred acceptance - appeal dismissed
Consortium Holdings P/L v Maybell 1 P/L (QSC) - corporations - winding up - company proved solvency - application to wind up company dismissed
BOQ Equipment Finance Ltd v Scott (QSC) - banking and finance - borrowers not induced to enter loan agreement - lender entitled to repayment of amount owing
Summaries With Link (Five Minute Read)
Police & Community Youth Clubs NSW Ltd v Refurb Interiors Pty Ltd (in liq) [2015] NSWCA 67
Court of Appeal of New South Wales
Macfarlan & Leeming JJA; Sackville AJA
Security for costs - appellant sought to appeal against primary judge’s rejection of its application for security for cost in proceeding in which respondent sued it for a debt alleged owed under a building contract - primary judge dismissed application on ground that an order for security would stultify the litigation - held: no error of principle or unreasonable exercise of primary judge’s discretion - open to primary judge to take view that order for provision of security should not be made before liquidators had been given full opportunity to explore funding opportunities - application for leave to appeal dismissed.
Jarrold v Registrar of Titles [2015] VSCA 45
Court of Appeal of Victoria
Osborn & Whelan JJA; Ginnane AJA
Real property - negligence - appellant alleged former husband forged her signature on power of attorney and used document to effect sale of jointly owned property - appellant commenced proceedings in negligence against conveyancing company, conveyancer and Registrar of Titles pursuant to s110 Transfer of Land Act 1958 (NSW) - claim against conveyancer settled - trial judge found appellant failed to satisfy burden of proof with respect to forgery allegation and that appellant held legal interest in property on resulting trust for former husband - credit - held: primary judge made errors of fact which she relied on as a foundation for grave doubts concerning lay evidence relied on to prove appellant did not sign power of attorney - primary judge’s reliance on errors also affected assessment of expert evidence - judgment could not stand - Court not in position to reach own conclusion on credit issues - new trial ordered.
P’Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42
Court of Appeal of Victoria
Whelan, Ferguson & Kaye JJA
Contract - first applicant conducted printing business - second applicant was principal - respondents engaged to act as brokers in sale of business - applicants entered agreement for sale to company - applicans sought to appeal from decision in which trial judge found agreement as to commission was made in September 2010 which was varied in February 2011 and again in April 2011 - whether agreement made - whether brokers precluded from recovering commission because they were unlicensed ‘estate agents’ within meaning of Estate Agents Act 1980 (Vic) - contracts in absence of clear offer and acceptance - credit - held: primary judge correct to imply term as to amount of commission into varied agreement - no error in conclusion that manifestation of mutual assent implied from circumstances -  brokers not required to be licensed because transaction was ‘one off’ - no error in finding s50 did did not apply - appeal dismissed.
Consortium Holdings P/L v Maybell 1 P/L [2015] QSC 55
Supreme Court of Queensland
Jackson J
Corporations - winding up - respondent company served with statutory demand to pay alleged debt - company  failed to comply with demand - applicant sought to wind up company in insolvency - whether respondent had proved solvency - presumption of insolvency - s459C(3) Corporations Act 2001 (Cth) - held: Court satisfied respondent proved sole director had made arrangements by which it was more probable than not she would be able to provide working capital required for respondent to pay debts - respondent proved director had required commitment of third party who proposed to supported otherwise insolvent company - company solvent - application dismissed.
BOQ Equipment Finance Ltd v Scott [2015] QSC 60
Supreme Court of Queensland
P McMurdo J
Banking - plaintiff claimed payment of money lent to by first and second defendants under written agreement - plaintiff also claimed same sum against third defendant, which had guaranteed the payments - defendants contended plaintiff’s representative made misrepresentations which induced them to enter agreement - defendants conceded that absent alleged representations or promises they would be liable to plaintiff - held: defendants’ case rejected - Court did not accept alleged statements made by representative - even if representative made the statements, no resultant loss or damage was or was likely to be suffered by defendants - judgment for plaintiff.