| Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd (FCAFC) - corporations - deed of company arrangement - costs - two related appeals - judgment against company varied - director’s appeal allowed (B C) |
| Hudson v Arap 1 (NSW) Pty Ltd (NSWCA) - contract - Tribunal did not have jurisdiction to order termination of tenancy or possession of premises - orders quashed (B G) |
| Lachlan v HP Mercantile Pty Ltd (NSWCA) - deed of release and assignment - assignee entitled to amounts owing under loan agreements - appeal dismissed (I B) |
| Verryt v Schoupp (NSWCA) - negligence - motor accidents compensation - “skitching” accident - contributory negligence established - damages reduced - appeal allowed in part (I) |
| Kendirjian v Lepore (NSWCA) - professional negligence - solicitors’ duties - conduct protected by advocate’s immunity - appeal dismissed (I) |
| Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (NSWSC) - negligence - damages - doctor and nurse injured in plane crash - nurse’s PTSD was “bodily injury” compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) (I) |
| Sanna v Wyse and Young International Pty Ltd (No.1) (NSWSC) - legal practitioners - motion to restrain barrister from appearing in matter refused (I) |
| Erratt v Grills (NSWSC) - real property - dividing fences - trespass - dispute concerning management of boundary between two rural properties - declarations proposed - summons otherwise dismissed (B) |
| MJ Arthurs Pty Ltd v Portfolio Housing Pty Ltd (QCA) - construction contract - time at which entitlement to profit share under oral agreement arose - appeal allowed (I B C) |
| Stellard Pty Ltd v North Queensland Fuel Pty Ltd (QSC) - contract for sale of roadhouse constituted by email exchange - judgment for purchasers (B) |
| Summaries With Link (Five Minute Read) |
Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd [2015] FCAFC 63
Full Court of the Federal Court of Australia
Besanko, Gilmour & Ranghia JJ
Corporations - deed of company arrangement - costs - two related appeals - first appeal brought by appellant company concerning effect of Deed of Company Arrangement (DOCA) between it and its creditors on amount of judgment entered on counterclaim, and its effect on proper construction on costs orders made against it in relation to counterclaim - second appeal by company’s sole director who was non-party - director was ordered with company to pay costs of proceedings - director complained he was denied procedural fairness - held: DOCA was a bar to bringing any claim for unsecured amount - judgment for only secured amount ought to have been entered - first respondent’s costs of prosecuting counterclaim against company were not compromised by the DOCA having regard to s444D Corporations Act 2001 nor first respondent’s costs defending company’s claims - discretion of primary judge miscarried in relation to costs order against director - there was denial of procedural fairness - judgment against company varied - company’s appeal in relation to costs orders dismissed - director’s appeal allowed.
Central (B C)
[From Benchmark Monday, 18 May 2015]
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Hudson v Arap 1 Pty Ltd [2015] NSWCA 126
Court of Appeal of New South Wales
Bathurst CJ; Emmett JA & Bergin CJ in Eq
Contract - parties entered contract whereby appellant agreed to sell premises to respondent - at same time as entering contract, parties entered call option agreement whereby respondent granted appellant option to repurchase - on completion of purchase respondent as landlord and appellant as tenant entered residential tenancy agreement - NSW Civil and Administrative Tribunal (NCAT) ordered tenancy terminated and ordered appellant to give possession of premises to respondent - appellant sought to quash NCAT’s orders - whether NCAT had jurisdiction to make order for termination of tenancy under Tenancy Agreement - whether Tenancy Agreement arose under term of mortgage - ss8(1)(f), 8(1)(g) & 84 Residential Tenancies Act 2010 - held: property transferred as security for amount paid to pursuant to contract and additional amount to which respondent was entitled under Option Agreement and the Tenancy Agreement - Tenancy Agreement arose under terms of mortgage - Tribunal did not have jurisdiction to make orders - orders quashed.
Hudson (B G)
[From Benchmark Monday, 18 May 2015]
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Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & McColl JA
Contract - appellant entered four loan agreements with company - respondent was assignee of company’s rights - respondent sought to recover amounts outstanding on loans - parties entered Deed of Release and Assignment which provided appellant pay respondent amount in instalments and that respondent entitled to enter judgment for “judgment debt’ under deed if unrectified default - consent orders made - appellant defaulted on final instalment and failed to rectify - appellant sought extension of time to pay final instalment - appellant submitted finding in Paino v Hoffbauer 13 NSWLR 193 in error and should not be followed, and that clause of deed which provided for payment of “judgement debt” unenforceable as it amounted to penalty - held: Paino v Hoffbauer did not impermissibly fetter Court’s general discretion, and trial judge did not err in having regard to it - primary judge did not exercise discretion in manner manifestly unreasonable or plainly unjust in refusal of extension of time - clause of deed not a penalty as appellant implicitly acknowledged in deed that “judgment debt” debt was present debt - appeal dismissed.
Lachlan (I B)
[From Benchmark Tuesday, 19 May 2015]
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Verryt v Schoupp [2015] NSWCA 128
Court of Appeal of New South Wales
Meagher & Gleeson JJA; Sackville AJA
Negligence - damages - respondent was child who sustained serious head injuries in ‘skitching’ (riding skateboard while towed by vehicle) - accident was a “motor accident” under Motor Accidents Compensation Act 1999 - respondent claimed damages for negligence - appellant driver frankly conceded blame - primary judge rejected contributory negligence defence - judgment entered for respondent in amount of $2,204,150.47 - held: it was just and equitable that respondent bear small proportion of responsibility for damage resulting from accident - sufficient allowance for respondent’s lack of care for own safety was reflected in a reduction of his damages by 10% - reductions made to certain heads of damages - appeal allowed in part.
Verryt (I)
[From Benchmark Tuesday, 19 May 2015]
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Kendirjian v Lepore [2015] NSWCA 132
Court of Appeal of New South Wales
Macfarlan & Leeming JJA
Professional negligence - solicitors’ duties - advocate’s immunity - applicant travelling in vehicle - applicant injured when vehicle collided with other vehicle - first respondent solicitor commenced proceedings on applicant’s behalf against driver of other vehicle - driver admitted liability - date fixed for hearing on quantum - solicitor briefed second respondent barrister to appear for applicant - driver’s legal representatives communicated offer to settle to respondents - applicant alleged respondents did not advise him of amount of settlement offer and rejected it absent instructions on basis it was too low - applicant sued respondents in negligence claiming difference between settlement offer and judgment as damages - primary judge summarily dismissed proceedings on basis respondents immune from suit under advocates’ immunity principle - held: allegedly negligent advice or omission to advise constituted out of Court conduct which led to continuation of Court proceedings - conduct protected by advocate’s immunity - appeal dismissed.
Kendirjian (I)
[From Benchmark Friday, 22 May 2015]
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Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566
Supreme Court of New South Wales
Schmidt J
Negligence - damages - nurse and doctor employed by company - company sent nurse and doctor from Sydney to help transport seriously ill patient and husband from Samoa to Melbourne - plane operated by Pel-Air Aviation Pty Ltd (Pel-Air) - plane crashed during leg of flight - doctor and nurse seriously injured - doctor and nurse sought to recover damages from Pel-Air - Pel-Air accepted crash caused by negligence of pilot and co-pilot for which it had vicarious liability - not in issue that doctor and nurse injured - nurse suffered psychiatric injury - Pel-Air did not concede nurse’s PTSD compensable under Civil Aviation (Carriers Liability) Act 1959 (Cth) - held: s9E provided rights to compensation for “bodily injury” under Art 17 Montreal Convention - nurse’s PTSD compensable because it was a “bodily injury” - nurse also entitled to recover economic and non-economic losses under Civil Liability Act 2002 - doctor entitled to payment for future economic losses up to retirement age of 70 and for future care needs from ages 40 to 75 - judgment for doctor and nurse.
Casey (I)
[From Benchmark Tuesday, 19 May 2015]
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Sanna v Wyse and Young International Pty Ltd [2015] NSWSC 580
Supreme Court of New South Wales
Darke J
Legal practitioners - defendants and their sole director sought to restrain barrister from appearing in proceedings as counsel for plaintiff - barrister had previously acted for director and had been on friendly terms with him - held: Court not persuaded barrister possessed any confidential information that was or may be relevant to the issues - Court not persuaded it was appropriate case to exercise inherent jurisdiction to restrain legal practitioner from acting - Court did not think a fair-minded reasonably informed member of public would conclude proper administration of justice required barrister should not appear - no reason to think that barrister would be unable to discharge obligations with independence and objectivity - motion refused.
Sanna (I)
[From Benchmark Wednesday, 20 May 2015]
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Erratt v Grills [2015] NSWSC 594
Supreme Court of New South Wales
Lindsay J
Real property - dividing fences - trespass - dispute concerning management of boundary between two rural properties - plaintiff claimed entitlement to exclusive occupation and use of land owned by defendants in freehold title on her side of their dividing fence - plaintiff claimed that by venturing on her side of the fence had committed trespass - plaintiff claimed injunctive relief and damages - s14 Dividing Fences Act 1991 NSW (NSW) - characterisation and exposition of arrangement governing parties’ dividing fence - Landale v Menzies 9 CLR 89 - held: defendants substantially successful in opposing relief claimed by plaintiff - declarations proposed - summons otherwise dismissed.
Erratt (B)
[From Benchmark Thursday, 21 May 2015]
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MJ Arthurs Pty Ltd v Portfolio Housing Pty Ltd [2015] QCA 86
Court of Appeal of Queensland
Gotterson and Philippides JJA & A Lyons J
Construction contract - appellants appealed against finding by primary judge as to time at which respondents’ entitlement to profit share arose under oral agreement between them and appellants - appellants contended entitlement arose in respect of any given construction contract only when contract completed and actual profit could be ascertained - respondents contended entitlement arose when all administration work necessary for procuring it was completed by first respondent’s director - held: primary judge erred in finding respondents’ entitlement to profit share on construction contract arose when first respondent presented it for execution - in order to derive entitlement respondents required to perform tasks and responsibilities after presentation of construction contract for execution and up to point of completion - appeal allowed.
MJArthurs (I B C)
[From Benchmark Friday, 22 May 2015]
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Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
Supreme Court of Queensland
Martin J
Contract - defendant was owner of roadhouse - defendant appointed agent to sell freehold and business - expressions of interest sought - negotiations took place by email with parties’ representatives - plaintiffs claimed contract for sale of roadhouse to them was constituted by email exchange between them and owner - defendant claimed there was no intention to be legally bound by exchange and that in any event there was no sufficient written memorandum or note to satisfy s59 Property Law Act 1974 Property Law Act - Electronic Transactions (Queensland) Act 2001 - held: there was contract with defendant for sale of roadhouse - defendant’s contention that there was no sufficient writing to satisfy s59 Property Law Act failed - judgment for plaintiffs.
Stellard (B)
[From Benchmark Tuesday, 19 May 2015]
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