Weekly Law Review Friday, 27 March 2015 View in browser

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

Weekly Law Review

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CIVIL (Insurance, Banking, Construction & Government)
Executive Summary (One Minute Read)
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was no objection decision - respondents contended that once election made by taxpayer to give notice it could not be withdrawn by taxpayer and objections were deemed to have been disallowed - primary judge found in favour of respondents - statutory construction - quilibet potest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]
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.
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