| 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) |
| 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) |
| 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) |
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] |
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] |
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] |
| CRIMINAL SELECTION |
| Executive Summary |
|
DPP v Torun (VSCA)
– manslaughter by unlawful or dangerous act – guilty plea – sentence of
imprisonment - 8 years with non-parole period of 5 years - not manifestly
inadequate
|
| Summaries With Link |
DPP v Torun [2015] VSCA 15
Court
of Appeal of Victoria
Ashley,
Whelan & Beach JJ
Sentencing
– respondent shot and killed girlfriend with gun that he had earlier loaded –
did not recall gun was loaded due to drug-addled state - pleaded guilty to manslaughter
by unlawful and dangerous act – imprisonment for 8 years with non-parole
period of 5 years – judge indicated that, but for guilty plea, respondent would
have been sentenced to term of imprisonment of 11 years with non-parole period
of 8 years and 6 months – DPP contended sentence was manifestly inadequate –
held: no appeal from judge’s finding that respondent’s behaviour did not
involve any intended or foreseen violence or injury to victim – no intention to
harm victim – sentence not outside range open to judge – no clear and egregious
inadequacy in the circumstances – appeal dismissed.
DPP
|
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
|
