Daily Insurance: Friday, 29 May 2015 View in browser

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

Daily Insurance

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Executive Summary (One Minute Read)
Rogers v MHM Metals Ltd (FCAFC) - corporations - dishonest and fraudulent design - knowing assistance - director and his company liable to pay compensation to respondent company
Jojeni Investments Pty Ltd v Mosman Municipal Council (NSWCA) - environment and planning - existing use of land was as a “building containing flats” - appeal allowed - declaration
Ikosidekas v Karkanis (VSCA) - administrative law - bias - procedural fairness - Tribunal’s decision set aside - Tribunal to be reconstituted
Summaries With Link (Five Minute Read)
Rogers v MHM Metals Ltd [2015] FCAFC 67
Full Court of the Federal Court of Australia
Middleton, Gilmour & Gleeson JJ
Corporations - appellants appealed from single judge’s order that they pay compensation to respondent pursuant to s1317H Corporations Act 2001 in sum comprising amounts spent by respondent to purchase and refit yacht although property in yacht never passed to respondent - judge found compensation payable by director of trustee of family trust for contraventions of ss181, 182 & 183 involving misappropriation of respondent company’s funds, and trustee as it was “knowingly concerned” in misconduct - held: open to primary judge to conclude ownership never passed to respondent - no error in in conclusion trustee of family trust  liable by reason of having given knowing assistance to fiduciary with knowledge of dishonest and fraudulent design - appeal dismissed.
Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147
Court of Appeal of New South Wales
Macfarlan, Gleeson & Leeming JJA
Environment and planning - Council approved building alteration works to convert a two storey house into two flats in 1933 - appellant sought to demolish existing building and construct building containing three flats - land zoned R2 - appellant’s proposed development prohibited on land zone R2 - application turned on existing use rights -  primary judge declared land “has the benefit of existing use rights as two flats in a house” - appellant appealed - held: In 1933 it was possible for owner of property to use property as two residences without Council’s approval - use of building as modified for residential purposes answered description of “existing use” under s106(a) Environmental Protection and Assessment Act 1979 - characterisation of determined by having regard to purpose served by activities undertaken on land - use of building for three flats is not “different in kind” from use as a building for two flats - appropriate declaration of existing use was as a “building containing flats - appeal allowed.
Ikosidekas v Karkanis [2015] VSCA 121
Court of Appeal of Victoria
Mandie & Kyrou JJA
Administrative law - bias - procedural fairness - applicant instituted proceeding in Victorian Civil and Administrative Tribunal in relation to mother seeking appointment of administrator - applicant sought leave to appeal from dismissal of application for reconstitution of Tribunal on basis of reasonable apprehension of bias and denial of procedural fairness - held: VCAT’s comments went beyond interlocutory application before it and constituted apparent pre-judgment of issues yet to be decided - fair minded lay observer might reasonably apprehend VCAT as presently constituted might not bring an impartial and unprejudiced mind to resolution of questions to be decided at substantive hearing - appeal allowed - VCAT’s order set aside - VCAT to be reconstituted pursuant to s108(2)(a) Victorian Civil and Administrative Tribunal Act 1998 .
On Virtue
By Phillis Wheatley

O thou bright jewel in my aim I strive
To comprehend thee. Thine own words declare
Wisdom is higher than a fool can reach.
I cease to wonder, and no more attempt
Thine height t’explore, or fathom thy profound.
But, O my soul, sink not into despair,
Virtue is near thee, and with gentle hand
Would now embrace thee, hovers o’er thine head.
Fain would the heaven-born soul with her converse,
Then seek, then court her for her promised bliss.

Auspicious queen, thine heavenly pinions spread,
And lead celestial Chastity along;
Lo! now her sacred retinue descends,
Arrayed in glory from the orbs above.
Attend me, Virtue, thro’ my youthful years!
O leave me not to the false joys of time!
But guide my steps to endless life and bliss.
Greatness, or Goodness, say what I shall call thee,
To give an higher appellation still,
Teach me a better strain, a nobler lay,
O Thou, enthroned with Cherubs in the realms of day!

Phillis Wheatley