| Commissioner of
Taxation v McGrouther (FCAFC) - taxation - taxpayers could withdraw
notices given to Commissioner - Commissioner’s appeal allowed (B) |
| Gold
& Copper Resources Pty Ltd v The Hon Chris Hartcher, Minister for Resources
& Energy, Special Minister (NSWCA) - administrative law
- renewal of exploration licence not void - appeal dismissed (I B C G) |
| Clavel v Savage (NSWCA) – malicious prosecution
– delay – credit - failure to prove lack of reasonable cause for prosecution – appeal
dismissed (I) |
| Caltex Australia
Petroleum Pty Ltd v Troost (NSWCA) – guarantee and indemnity – respondent bound by clauses constituting
“Guarantee and Indemnity by Directors” (I B C) |
| 122 Pitt Street Pty
Ltd ACN 104 825 961 v Universal 1919 Pty Ltd (NSWSC) - landlord and tenant - independent
valuer complied with lease - parties bound by valuation (I B) |
| Meriton Apartments
Pty Ltd v The Owners Strata Plan No. 72381 (NSWSC) - contract - repudiation of caretaker
agreement - promoter’s fiduciary duty of disclosure (I B C) |
| Wormleaton v Thomas
& Coffey Ltd (No 4) (NSWSC) - work injury damages - employer’s duty
of care - severe crush injury - employer not liable (I C) |
| Lane v Chaplin (TASFC) - traffic law
- driver’s negligent driving caused death of child - appeal allowed (I) |
| Summaries With Link (Five Minute Read) |
Commissioner
of Taxation v McGrouther
[2015] FCAFC 34
Full Court of the Federal Court of
Australia
Allsop CJ; Pagone & Davies JJ
Taxation - respondents gave Commissioner
notices requiring him to make objection decision - notices given two days after
Commissioner served first respondent with notice under s264 Income Tax Assessment Act 1936 (Cth) requiring
him to attend examination - respondents “withdrew” their notices before end of 60
day period referred to in s14ZYA(3) as condition of Commissioner agreeing to
adjourn examination of first respondent - despite withdrawal, respondents
commenced appeal under Pt IVC against the disallowance of objections after expiry
of 60 day period - Commissioner sought to strike out or dismiss appeal on basis
there was no objection decision - respondents contended that once election made
by taxpayer to give notice it could not be withdrawn by taxpayer and objections
were deemed to have been disallowed - primary judge found in favour of
respondents - statutory construction - quilibet
potest renunciare juri pro se introducto - whether rights given to taxpayer
under s14ZYA capable of waiver held: primary judge erred in finding notice
could not be withdrawn - leave to appeal granted - appeal allowed.
Commissioner (B)
[From Benchmark 19 March 2015] |
Gold
& Copper Resources Pty Ltd v The Hon Chris Hartcher, Minister for Resources
& Energy, Special Minister
[2015] NSWCA 57
Court of Appeal of New South Wales
Beazley P; Macfarlan & Gleeson JJA
Administrative law - company held
exploration prospecting licence granted under Mining Act 1992 (NSW) - company sought renewal of licence for two
years - company sent new first page of application to Department outside time
prescribed by Act - new first page specified
term of requested renewal was five years - Minister renewed licence for five
years - appellant challenged validity of renewal pursuant to s293(1)(q)(ii) -
appellant sought declaration renewal of licence void and of no effect -
appellant contended that in sending new first page company withdrew or
abandoned initial application and made new application out of time, which could
not enliven Minister’s power to renew licence under s114 - held: application
not finally disposed of when Minister
renewed licence - application renewal could not be withdrawn except by lodging
notice with Director-General in accordance with s130 - not open for appellants
to raise question of company’s intention to submit new application on appeal -
appellant’s argument that company submitted new application inconsistent with
s16 - appeal dismissed.
Gold (I B C G)
[From Benchmark 20 March 2015] |
Clavel
v Savage
[2015] NSWCA 61
Court of Appeal of New South Wales
Macfarlan & Emmett JJA; Sackville AJA
Malicious prosecution - appellants
commenced proceedings against former neighbours seeking damages for intentional
inflection of emotional distress - appellants also sued State for malicious
prosecution and collateral abuse of process - primary judge found in favour of
defendants - appellants appealed - delay - held: substantial delay between hearing
of evidence and delivery of judgment did not necessarily indicate findings of
fact unsafe - even if primary judge’s assessment of credibility flawed, first
appellant’s credit not material to conclusion appellants had not demonstrated
lack of reasonable and proper cause to initiate prosecutions - no error in
finding appellants failed to prove lack of reasonable cause for prosecution - no error in finding claims for collateral abuse of process not established - appellants did not advance any cogent reason for concluding primary Judge
misapplied relevant principles or improperly exercised discretion as to costs - appeal dismissed.
Clavel (I)
[From Benchmark 25 March 2015] |
Caltex
Australia Petroleum Pty Ltd v Troost
[2015] NSWCA 64
Court of Appeal of New South Wales
Meagher, Barrett & Emmett JJA
Guarantee and indemnity - company indebted
to Caltex - Caltex claimed respondent liable to pay amount owing to company by reason
of guarantee and indemnity signed by him - Caltex sued respondent for balance
owed by company - loan application form called “Guarantee and Indemnity by
Directors” divided into two columns with two signature blocks - respondent
signed only one signature block - trial judge found respondent’s liability
under guarantee clause discharged by variation in terms and conditions and that
respondent never bound by indemnity clause because he had not signed indemnity in
right-hand column - Caltex contended trial judge ought to have found respondent
bound by indemnity clause - Pt 2K.2 Corporations
Act 2001 (Cth) - whether indemnity clause separate from guarantee clause - held:
author of documentation intended guarantee and indemnity section create only
one obligation for any director who signed that section - trial judge erred in
concluding respondent not bound by clauses constituting “Guarantee and
Indemnity by Directors” - contentions
advanced on respondent’s behalf rejected - appeal allowed.
Caltex (I B C)
[From Benchmark 25 March 2015] |
122
Pitt Street Pty Ltd ACN 104 825 961 v Universal 1919 Pty Ltd [2015] NSWSC 234
Supreme Court of New South Wales
Kunc J
Landlord and tenant - plaintiff lessor
leased part of building to defendant lessee - lease was term of 10 years with
option for further 10 years - lessee exercised option - lease provided for
market review of base rent upon exercise
of option to renew - lessor proposed new base rent - lessee engaged rent dispute mechanism under lease
resulting in appointment of independent valuer - valuer determined market rent
approximately $500,000 less than figure proposed by lessor - if valuer complied
with lease by disregarding value of fitout parties accepted they were bound by determination
- held: valuer complied with lease - valuation binding on parties - summons and
cross-summons dismissed
122Pitt (I B)
[From Benchmark 19 March 2015] |
Meriton
Apartments Pty Ltd v The Owners Strata Plan No. 72381 [2015] NSWSC 202
Supreme Court of New South Wales
Slattery J
Contract - plaintiff developer provided
caretaker services to owners corporation of strata scheme under caretaker
agreement made under Strata Schemes
Management Act 1996 (NSW) - plaintiff alleged owners corporation repudiated
agreement by ineffectively attempting to terminate it- owners corporation
alleged “serious, persistent and
continuing” breaches of agreement by plaintiff and claimed to have validly
terminated agreement - owners corporation also cross-claimed plaintiff breached
fiduciary duties as promoter to the owners corporation - held: owners corporation
bound to agreement by its conduct in reliance on it, even though it had not
formally executed agreement - plaintiff had not committed any breach to entitle
owners corporation to terminate - owners corporation repudiated agreement -
specific performance not possible without owners’ corporations’ cooperation -
plaintiff limited to claim for damages - assessment of damages reserved for
further consideration - plaintiff owed fiduciary duty as promoter to owners
corporation - question whether plaintiff breach duty reserved for further
consideration.
Meriton (I B C)
[From Benchmark 20 March 2015] |
Wormleaton
v Thomas & Coffey Ltd (No 4)
[2015] NSWSC 260
Supreme Court of New South Wales
Campbell J
Work injury damages - employer’s duty of
care - quantum of damages - plaintiff
claimed damages for severe crush injury suffered at work - two defendants
admitted breach of duty of care - workers compensation nominal insurer, which
was party instead of employer, disputed liablity - quantum of damages - held: particular
risk which materialised was beyond scope of employer/employee relationship -
even if there was breach by employer, it did not cause worker’s injury - employer not liable - no contributory
negligence by worker - damages assessed - judgment for worker against first
defendant in sum of $2,286,832.00 - judgment for worker against second
defendant in sum of $2,286,832.00
Wormleaton (I C)
[From Benchmark 24 March 2015] |
Lane
v Chaplin [2015]
TASFC 4
Full Court of the Supreme Court of
Tasmania
Tennent, Wood & Escourt JJ
Traffic law -
negligent driving - child struck and killed by vehicle while crossing road - Magistrate
found driver’s negligent driving caused child’s death - driver also found
guilty of speeding - driver sought review of decision - Chief Justice dismissed
count of causing death by negligent driving - appellant contended Chief Justice
erred in finding it was not open to Magistrate to conclude defendant’s driving
was negligent and causative of child’s death- held: for 50 metres prior to collision
and only seconds before collision, driver was under duty of care to travel at
40km/h and he did not - had driver done so, collision would not have occurred -
common sense notions of causation resolved question adversely to driver - driver’s
negligence necessary and sufficient cause of occurrence of harm to child -
appeal allowed.
Lane (I)
[From Benchmark 24 March 2015] |
| CRIMINAL |
| Executive Summary |
| R v Kelsall (No 3) (NSWSC) - criminal law -
evidence - statements to doctors which amounted to protected confidences admissible |
| Summaries With Link |
R v
Kelsall (No 3)
[2015] NSWSC 253
Supreme Court of New South Wales
R A Hulme J
Criminal law - admissibility of evidence
of protected confidences - accused pleaded not guilty to two counts on
indictment alleging indecent assault and murder- admissibility of statements
made by accused to two doctors in mid 2012 - statements were protected confidences under Ch 3 Pt 3.10
Div 1A Evidence Act 1995 (NSW) -
Court required to exclude evidence if satisfied of matters in ss126B(3) &
126B(4) - held: probative value of evidence high - no violation of therapeutic
relationship as accused had no ongoing relationship with doctors - evidence was
of type doctors would consider being outside scope of what was required to be
kept confidential, a matter about which patients usually informed - evidence of
disclosures admissible.
RvKelsall |
Old
Wine
by Margaret Widdemer
If I could lift
My heart but high
enough
My heart could fill
with love:
But ah, my heart
Too still and heavy
stays
Too brimming with
old days.
Margaret Widdemer
|
