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


Friday, 27 February 2015

Executive Summary (One Minute Read)
Jewelsnloo Pty Ltd v Sengos (NSWSC) - contract - leave to reopen case to rely on new evidence refused
Naumovski v Ugrinovski (VSC) - costs - subpoenas issued in breach of overarching obligations in Civil Procedure Act 2005 (Vic) - indemnity costs
Tamaresis v CSR Ltd (VSC) - proceedings for damages for psychiatric reaction to father’s death from mesothelioma - adjournment refused
The Corporation of the City of Adelaide v Circelli (SASC) - environment and planning - refusal to grant permanent stay of prosecution - leave to appeal refused
Terravision Pty Ltd v Black Box Control Pty Ltd [No 2] (WASC) - pleadings - licence agreement - impermissible aids to construction of agreement - paragraphs of defence struck out
Summaries With Link (Five Minute Read)
Jewelsnloo Pty Ltd v Sengos [2015] NSWSC 80
Supreme Court of New South Wales
Robb J
Interlocutory application - claim arising out of contract for sale of business between plaintiff and second and third defendants - plaintiff alleged it entered contract on faith of a false representation concerning income of business - plaintiff sought leave to re-open its case to rely on additional evidence - new evidence consisted substantially of business’s trading records - held: to permit plaintiff to rely on new evidence would allow it to make fundamental change in basis of case - much of the preparation undertaken by defendants would be wasted - defendants would be subjected to significantly more cost, delay and anxiety - plaintiff would not be able to compensate defendants for financial consequences of being given leave to reopen - no explanation to justify giving leave - leave refused - notice of motion dismissed.
Jewelsnloo Pty Ltd
Naumovski v Ugrinovski [2015] VSC 49
Supreme Court of Victoria
Zammit J
Costs - plaintiffs issued subpoena to first defendant and non-party - first defendant and non-party objected - plaintiffs did not object to setting aside of subpoenas - first defendant and non-party sought indemnity costs - obligations to only take steps to resolve or determine dispute, to cooperate in conduct of civil proceeding, to narrow issues in dispute, and to ensure costs reasonable and appropriate - held: plaintiffs breached overarching obligations under ss19, 20, 23 & 24 Civil Procedure Act 2010 (Vic) - plaintiffs’ conduct had resulted in loss of time to Court and parties - breaches of overarching obligations sufficient to justify indemnity costs.
Tamaresis v CSR Ltd [2015] VSC 47
Supreme Court of Victoria
J Forrest J
Adjournment - plaintiff sued defendant for psychiatric reaction to death of father from mesothelioma - bulk of viva voce evidence to be taken in Greece - proceedings scheduled to commence 6/3/15 - defendant sought adjournment on basis of late provision of taxation records of plaintiff and defendant’s inability to obtain medical records relating to treatment which may be held by medical practitioners in Greece - held: defendant’s prospect of fair trial not compromised by proceeding on 6/3/15 and taking of evidence in Greece - application for adjournment refused.
The Corporation of the City of Adelaide v Circelli [2015] SASC 21
Supreme Court of South Australia
Bampton J
Environment and planning - applicant charged with failure to comply with s45(5) Environment Protection Act 1993 (SA) - prosecution commenced in summary jurisdiction of Environment, Resources and Development Court of South Australia - applicant sought to appeal against judge’s refusal to order a permanent stay of proceedings - judge dismissed application on basis applicant had failed to show that prosecution was doomed to failure, or that continuation of it would bring administration of justice into disrepute - held: Court not satisfied there were special reasons justifying permission to appeal - application dismissed.
The Corporation of the City of Adelaide
Terravision Pty Ltd v Black Box Control Pty Ltd [No 2] [2015] WASC 66
Supreme Court of Western Australia
Le Miere J
Pleadings - dispute arising out of licence agreement entered by parties - plaintiff claimed defendant had not informed or notified it of transactions it was obliged to give notice of and had not paid plaintiff in respect of those transactions - plaintiff sought to strike out paragraphs of defendant’s amended substituted defence - held: certain subparagraphs were not permissible aids to construction of agreement, thereby raised irrelevant issues or failed to state defendant’s case with reasonable particularity - certain subparagraphs struck out.
Terravision Pty Ltd
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