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


Friday, 28 November 2014

Executive Summary (One Minute Read)
In the matter of CGH Engineering Pty Ltd (NSWSC) - corporations - derivative action - leave to bring proceedings in name of company in administration
Bolitho v Banksia Securities Ltd (No 4) (VSC) - group proceedings - lawyers with interests in litigation funder prevented from acting for plaintiff
Sino Iron Pty Ltd v Palmer (No 2) (QSC) - pleadings - claim for equitable relief against strangers to a trust - paragraphs of defence struck out - leave to replead
Diamond Valley Holdings Pty Ltd v Thompson (WASC) - caveat - extension of caveat subject to condition subsequent
Summaries With Link (Five Minute Read)
In the matter of CGH Engineering Pty Ltd [2014] NSWSC 1132
Supreme Court of New South Wales
Brereton J
Corporations - derivative action - applicant sought leave pursuant to s237 Corporations Act 2001(Cth) to bring proceedings in name of company in voluntary administration (CGH Engineering) against company now in liquidation (CGH Mixers) - held: s237 not available where a company was in voluntary administration - Court had power to order that contributory of company in administration be authorised to use company's name as plaintiff - appropriate source of statutory jurisdiction if required was s447E(1) - application granted.
In the matter of CGH Engineering Pty Ltd
Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582
Supreme Court of Victoria
Ferguson JA
Group proceeding - plaintiff depositor and owner of debentures in company claimed he and group members suffered loss and damage as result of defendants’ conduct - lawyers had represented plaintiff in proceeding since inception - defendants sought to restrain plaintiff from continuing to retain lawyers - interests of lawyers in litigation funder - test for restraint - held: fair-minded, reasonably informed member of public would conclude that proper administration of justice required that lawyers should be prevented from acting, in the interests of the protection of the integrity of the judicial process and interests of justice.
Sino Iron Pty Ltd v Palmer (No 2) [2014] QSC 287
Supreme Court of Queensland
Jackson J
Pleadings - claim for equitable relief against strangers to a trust under the first and second limbs of Barnes v Addy, or against a person who procured, assisted or participated in a breach of trust - plaintiffs sought to strike out paragraphs of defence under r171 Uniform Civil Procedure Rules 1999 (Qld) on basis they were doomed to fail in in that they did not disclose a reasonable defence - illegitimate pressure - held: defendants failed to comply with rule that allegation of fraud must be pleaded specifically and with particularity - defendants failed to comply with r150(2) - bare allegations of intention or purpose not enough - paragraph did not give rise to arguable defence of clean hands - certain paragraphs struck out - leave to replead.
Sino Iron Pty Ltd
Diamond Valley Holdings Pty Ltd v Thompson [2014] WASC 447
Supreme Court of Western Australia
Edelman J
Caveats - applicant sought extension of caveat over the property in reliance on s138C Transfer of Land Act 1893 (WA) held: there was a disputed debt and applicant relied upon charge in contract to secure debt - caveator's claim in respect of the estate or interest in land had or may have substance - only issue as to balance of convenience concerned whether applicant would commence proceedings to recover debt and when those proceedings should be commenced - appropriate that orders for extension of caveat be made subject to condition subsequent that proceedings be commenced within 14 days.
Diamond Valley Holdings Pty Ltd

The Candle
by Katherine Mansfield

By my bed, on a little round table,
The Grandmother placed a candle.
She gave me three kisses telling me they were three dreams
And tucked me in just where I loved being tucked.
Then she went out of the room and the door was shut.
I lay still, waiting for my three dreams to talk;
But they were silent.
Suddenly I remembered giving her three kisses back.
Perhaps, by mistake, I had given my three little dreams.
I sat up in bed.
The room grew big, oh, bigger far than a church.
The wardrobe, quite by itself, as big as a house.
And the jug on the washstand smiled at me:
It was not a friendly smile.
I looked at the basket-chair where my clothes lay folded:
The chair gave a creak as though it were listening for something.
Perhaps it was coming alive and going to dress in my clothes.
But the awful thing was the window:
I could not think what was outside.
No tree to be seen, I was sure,
No nice little plant or friendly pebbly path.
Why did she pull the blind down every night?
It was better to know.
I crunched my teeth and crept out of bed.
I peeped through a slit of blind.
There was nothing at all to be seen
But hundreds of friendly candles all over the sky
In remembrance of frightened children.
I went back to bed …
The three dreams started singing a little song.

Katherine Mansfield