| Montanile v Board of Trustees of the National Elevator Industry Health Benefit Plan (Supreme Court of the United States) - equity - employee benefits plan sought enforcement of equitable lien over participant's settlement funds - enforcement of lien refused - case remanded
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| Mesa Minerals Ltd v Mighty River International Ltd (FCAFC) - corporations - authorisation granted for inspection and taking copies of appellant's books - appeal dismissed
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| Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd (FCAFC) - trade practices - statutory interpretation - collusion - price-fixing - markets for airborne cargo out of Hong Kong, Singapore and Indonesia were markets “in Australia” - appeal allowed
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| Perera v Genworth Financial Mortgage Insurance Pty Ltd (NSWCA) - pleadings - negligence - novel duties of care - defamation - leave to appeal against strike-out of statement of claim granted
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| Valuer-General of New South Wales v Oriental Bar Pty Ltd (NSWCA) - valuation of land - exercise of discretion miscarried - failure to discharge statutory functions according to law - Valuer-General's appeal against valuation of land allowed - cross-appeals dismissed
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| Buckworth v Gladio Pty Ltd (NSWCA) - contract - corporations - contract for sale of shares carrying right to exclusively occupy company title home unit in building - purchaser entitled to rescind for breach of contract - appeal dismissed
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| Thiess Pty Ltd v Dobbins Contracting Pty Ltd (NSWSC) - negligence - contract - bailment - proportionate liability - fire destroyed excavator due to ‘hot work' performed by defendants' employees - first defendant settled with plaintiff - second defendant not liable
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| Strauss v Bennett (NSWSC) - contract - claim for possession of land occupied by defendant - defendant failed to make out claim of unwritten agreement for sale to him of plaintiff's interest in land - plaintiff entitled to possession and damages - defendant entitled to restitution
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| Tan v Russell (VSC) - contract for sale - no valid termination of contract by email sent to real estate agent - plaintiffs' claim failed
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| Thorne Developments Pty Ltd v Thorne (QCA) - corporations - deed of appointment - trust deed - appointment of respondent as trustee of trust valid - respondent not required by trust deed to vacate office - appeal dismissed
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| Maio v City of Stirling [No 2] (WASCA) - contract - deed - dismissal of claim for easement for parking on land adjoining land registered in second respondent's name - appeal dismissed
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| BGC Construction Pty Ltd v Citygate Properties Pty Ltd (WASC) - construction contract - application to enforce adjudicator's determinations refused - determinations quashed
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Dear Subscriber
1. This Benchmark is published at 4.50 PM Thursday 24 March for Tuesday 29 March as tomorrow is Good Friday and Monday is a public holiday.
2. This Benchmark Television broadcast is on The Australian Constitution – a discussion on the possibility of Australia as a Republic.
3. At 10.30 AM on Tuesday the 29th of March – which is the first day back after Easter – Benchmark will broadcast a free live production for the first time. It is a trial broadcast only but you may be able to tune in – the subject is domain names and trademarks. An edited version will be broadcast in due course. The subject of this session is particularly interesting. It is a CLE session also.
4. You can view the session with the following link: https://www.youtube.com/watch?v=bDivlpWncto
5. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
6. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
7. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/web/cle
8. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
9. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
10. You should watch on Wi-Fi to avoid excess data usage charges.
11. We wish everyone a safe Easter.
Warm regards
Alan Conolly for Benchmark
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| Benchmark Television |
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| The Australian Constitution and Australia as a Republic |
| The Australian Constitution - discussion on the possibility of a republic - 35 minute discussion. This is an introduction to a series on the constitution. |
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| Summaries With Link (Five Minute Read) |
Montanile v Board of Trustees of the National Elevator Industry Health Benefit Plan
Supreme Court of the United States: Docket No 14-723.
Coram: Roberts CJ, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor & Kagan JJ
Equity - petitioner injured by drunk driver - employee benefit plan regulated by Employee Retirement Income Security Act of 1974 (ERISA) paid amount for medical expenses. - petitioner sued and obtained settlement against drunk driver - Board sought reimbursement from settlement under subrogation clause of plan - petitioner's attorney refused - Board sued petitioner under §502(a)(3) ERISA - Board sought equitable lien on settlement funds or petitioner's property - petitioner contended there was no identifiable fund because he had spent most of settlement - Eleventh Circuit held that even if petitioner had dissipated fund, plan entitled to re-imbursement from petitioner's general assets - held: basis for Board's claim was equitable - if fund dissipated on non-traceable items, lien eliminated and plaintiff could not attach defendant's general assets - arguments for enforcement of equitable lien failed - case remanded for District Court.
Montanile
[From Benchmark Tuesday, 22 March 2016] |
Mesa Minerals Ltd v Mighty River International Ltd [2016] FCAFC 16
Full Court of the Federal Court of Australia
Siopis, Gilmour & Katzmann JJ
Corporations - respondent was substantial shareholder in appellant - primary judge authorised respondent to inspect and take copies of appellant's books - appellant contended statutory preconditions for the exercise of Court's discretion not established or errors in exercise of discretion and in orders - ss232, 247A & 461 Corporations Act 2001 (Cth) - held: no deficiency in reasoning process or findings against evidence - no error in exercise of discretion or determination of scope of order - appeal dismissed.
Mesa
[From Benchmark Wednesday, 23 March 2016] |
Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42
Full Court of the Federal Court of Australia
Dowsett, Yates & Edelman JJ
Trade practices - statutory interpretation - Commission claimed Air New Zealand Ltd (Air NZ) and Garuda engaged in collusive behaviour by fixing surcharges and fees on carriage of air cargo into Australia contrary to s45 Trade Practices Act 1974 (Cth) - primary Judge found markets for airborne cargo out of Hong Kong, Singapore and Indonesia were not markets “in Australia” within s4E - primary judge concluded market was located at point airline choice took effect, which was was the point at which cargo was delivered to airline - consideration of s4E read with ss45 & 45A - held: all aspects of market were relevant in determination whether market was in Australia - determination was evaluative exercise - Air NZ and Garuda supplied air cargo services inluding important components which were provided in Australia - services marketed and supplied to customers in Australia - there were Australian barriers to entry into market - market was “in Australia” - appeal allowed.
ACCC
[From Benchmark Thursday, 24 March 2016] |
Perera v Genworth Financial Mortgage Insurance Pty Ltd [2016] NSWCA 53
Court of Appeal of New South Wales
McColl & Leeming JJA
Pleadings - leave to appeal - negligence - novel duties of care - defamation - self-represented litigant - applicant valuer sought leave to appeal from judgment striking out his statement of claim in proceedings against respondent mortgage insurer - applicant sought to sue respondent for economic harm caused by negligence, defamation and nervous shock - held: matter raised issues of principle concerning strike-out power - there was possibility of substantial injustice to applicant - duty of care contended for in economic loss claim was novel - economic loss claim did not disclose no reasonable cause of action - economic loss claim should not have been struck out - factual basis of duty of care in relation to nervous shock claim also yet to be ascertained but it was arguable that nervous shock claim ought not to have been struck out - defamation claim should not have been struck out - leave to appeal granted.
Perera
[From Benchmark Wednesday, 23 March 2016] |
Valuer-General of New South Wales v Oriental Bar Pty Ltd [2016] NSWCA 48
Court of Appeal of New South Wales
Basten & Simpson JJA; Sackville AJA
Valuation of land - Valuer-General's challenged primary judge's finding as to land value of property - Valuer-General sought that declarations should be set aside and confirmation of Valuer-General's determination of land value - by cross-appeal Objectors contended primary judge failed to determine land value in conformity with ss6A & 14G Valuation of Land Act 1916 (NSW) and sought variation of determinations - ss38-325, 75 & 135-5 A New Tax System (Goods and Services Tax) Act 1999 (Cth) - ss19(b) & 57 Land and Environment Court Act 1979 (NSW) - ss4(1), 6A, 14A, 14B, 14G & 37(1) Valuation of Land Act - held: primary judge's exercise of discretion miscarried - exercise of discretion based on misapprehension of facts producing unreasonable and plainly unjust result - primary judge did not discharge statutory functions lawfully constituting error of law - Valuer-General's appeal allowed - cross-appeal dismissed.
Valuer-General of New South Wales
[From Benchmark Thursday, 24 March 2016] |
Buckworth v Gladio Pty Ltd [2016] NSWCA 54
Supreme Court of New South Wales
Beazley P, Bergin CJ in Eq & Emmett AJA
Contract - corporations - appellant vendor and first respondent purchaser entered contract for sale of shares - ownership of shares carried right to exclusively occupy company title home unit in building - second respondent owed building - purchaser rescinded on basis second respondent did not provide requisite approval - contract primary judge found in purchaser's favour against vendor for recovery of deposit - primary judge found requisite approval not given and that even if it was purchaser entitled to rescind for breach of contractual provision requiring that books which law required second respondent to keep were properly kept - held: second respondent had given approval of purchaser - purchaser not entitled to rescind under clause in relation to requisite approval - no error in finding there was breach contract concerning keeping of books which entitled purchaser to rescind or terminate - appeal dismissed.
Buckworth
[From Benchmark Tuesday, 29 March 2016] |
Thiess Pty Ltd v Dobbins Contracting Pty Ltd [2016] NSWSC 265
Supreme Court of New South Wales
McDougall J
Negligence - contract - bailment - proportionate liability - fire destroyed excavator used by second plaintiff - fire caused by ‘hot work' carried out by first defendant's employee - second defendant's employee assisted first defendant's employee with the ‘hot work' - second plaintiff claimed employees failed to exercise appropriate care and employers were liable - first defendant did not partake in proceedings due to settlement with plaintiffs - first plaintiff was lessee of excavator - plaintiffs claimed first plaintiff had subleased excavator to second plaintiff at time of accident - nature of precautions required to be taken in context of work performed - contributory negligence - s5B Civil Liability Act 2002 (NSW) - held: plaintiff's case against second defendant failed - judgment for second defendant.
Thiess
[From Benchmark Monday, 21 March 2016] |
Strauss v Bennett [2016] NSWSC 262
Supreme Court of New South Wales
Darke J
Contract - agreements made between owners of 1/10 interest in land - plaintiff was registered proprietor of 1/10 interest in land - building works carried out on plaintiff's site - plaintiff's daughter and defendant husband lived on site - couple divorced - no property settlement - plaintiff sought possession against defendant - defendant claimed he occupied site pursuant to unwritten agreement for sale to him of plaintiff's interest - defendant sought specific performance - constructive trust - principal and agent - ratification - joint endeavour - held: defendant did not make out claims - plaintiff entitled to possession and damages - defendant entitled to restitution of amount paid pursuing alleged agreement.
Strauss
[From Benchmark Monday, 21 March 2016] |
Tan v Russell [2016] VSC 93
Supreme Court of Victoria
Cameron J
Contract - sale of land - defendant was registered proprietor of company - plaintiffs sought declaration contract for sale of land was terminated by notice of termination sent by email to real estate agent - whether plaintiffs validly terminated contract by email within cooling off period under s31(3) Sale of Land Act 1962 (Vic) - Electronic Transactions (Victoria) Act 2000 (Vic) - implied or ostensible authority - statutory authority - held: real estate agent did not have necessary authority to receive notice of termination pursuant to s31 - plaintiff's claim failed - defendant complied with contractual obligations concerning notice of default and rescission - counterclaim succeeded.
Tan
[From Benchmark Tuesday, 22 March 2016] |
Thorne Developments Pty Ltd v Thorne [2016] QCA 63
Court of Appeal of Queensland
Gotterson, Morrison & Phillipides JJA
Corporations - appellant was trustee of family discretionary trust - appellant deregistered - sole director (Mr Thorne) declared bankrupt - appellant's registration reinstated by ASIC under s601AH(1) Corporations Act 2001 (Cth) - different sole director appointed (Mr Casey) - by deed of appointment Thorne Mr Thorne, appointed respondent wife and brother as trustees of trust - brother relinquished office prior to appellant's reinstatement - appellant was refused declarations as to invalidity of respondent's appointment - primary judge held deed of appointment validly appointed respondent, no substance to contention appointment not bona fide exercise of power, and trust deed did not require respondent to vacate office - proper construction of deed of appointment and trust deed - s188 Bankruptcy Act 1966 (Cth) - ss601AD, 601AE & 601AH Corporations Act - ss10, 12 & 80(1) Trusts Act 1973 (Qld) - held: grounds of appeal failed - appeal dismissed.
Thorne
[From Benchmark Tuesday, 22 March 2016] |
Maio v City of Stirling [No 2] [2016] WASCA 45
Court of Appeal of Western Australia
Martin CJ; Buss & Murphy JJA
Contract - deed - primary judge dismissed appellants' claim concerning alleged proprietary rights in nature of easement for parking on land adjoining land registered in second respondent's name - alleged easement arose pursuant to deed (‘2010' deed) to which appellants were not party and which referred to earlier deed (‘1983 deed') - appellant not party to 1983 deed - appellants contended they were entitled to enforce covenants in 1983 deed as adopted in 2010 deed or entitled to easement for use of ‘Use Area' on lot - doctrine of lost modern grant - prescription - Prescription Act 1832 (UK) - s11(2) Property Law Act 1969 (WA) - ss7 & 24 Town Planning and Development Act 1928 (WA) - s63A, 65(3) & 69 Transfer of Land Act 1893 (WA) - held: grounds of appeal failed - appeal dismissed.
Maio
[From Benchmark Monday, 21 March 2016] |
BGC Construction Pty Ltd v Citygate Properties Pty Ltd [2016] WASC 88
Supreme Court of Western Australia
Tottle J
Construction contract - dispute concerning construction of extension to shopping centre - three applications - BGC sought leave to enter judgment against Citygate regarding two determinations made by adjudicator - Citygate sought to quash determinations - - whether adjudicator exceeded authority conferred by Construction Contracts Act 2004 (WA) - whether claims out of time - slip rule - balance of probabilities - rebuttal materials - “material personal interest “ - adequacy of reasons - ss26, 29, 31, 32 & 36 Construction Contracts Act - regs 4 & 5 Construction Contracts Regulations 2004 (WA) - held: application to enforce determinations dismissed - jurisdictional error established - determinations quashed.
BCG
[From Benchmark Tuesday, 22 March 2016] |
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Poem for Friday (Recitation here by Thomas Hellier)
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from Don Juan: Canto 1, Stanzas 217-221
BY LORD BYRON (GEORGE GORDON)
217
Ambition was my idol, which was broken
Before the shrines of Sorrow and of Pleasure;
And the two last have left me many a token
O'er which reflection may be made at leisure:
Now, like Friar Bacon's brazen head, I've spoken,
'Time is, Time was, Time's past', a chymic treasure
Is glittering youth, which I have spent betimes—
My heart in passion, and my head on rhymes.
218
What is the end of Fame? 'tis but to fill
A certain portion of uncertain paper:
Some liken it to climbing up a hill,
Whose summit, like all hills', is lost in vapour;
For this men write, speak, preach, and heroes kill,
And bards burn what they call their 'midnight taper,'
To have, when the original is dust,
A name, a wretched picture, and worse bust.
219
What are the hopes of man? old Egypt's King
Cheops erected the first pyramid
And largest, thinking it was just the thing
To keep his memory whole, and mummy hid;
But somebody or other rummaging,
Burglariously broke his coffin's lid:
Let not a monument give you or me hopes,
Since not a pinch of dust remains of Cheops.
220
But I being fond of true philosophy,
Say very often to myself, 'Alas!
All things that have been born were born to die,
And flesh (which Death mows down to hay) is grass;
You've pass'd your youth not so unpleasantly,
And if you had it o'er again—'twould pass—
So thank your stars that matters are no worse,
And read your Bible, sir, and mind your purse.'
221
But for the present, gentle reader! and
Still gentler purchaser! the bard—that's I—
Must, with permission, shake you by the hand,
And so your humble servant, and good bye!
We meet again, if we should understand
Each other; and if not, I shall not try
Your patience further than by this short sample—
'Twere well if others follow'd my example.
LORD BYRON (GEORGE GORDON) |
