Daily Banking: Thursday, 30 July 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Alameddine v Glenworth Valley Horse Riding Pty Ltd (NSWCA) - negligence - consumer law - fall from quad bike at respondents’ recreational facility - respondents negligent and breached guarantee - compensation - damages
SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd (NSWSC) - contract - asset sale agreement - purchaser entitled to terminate agreement but not entitled to return of deposit
Greer v Pickering (NSWSC) - pleadings - solicitors’ duties - permission to amend statement of claim
Clayton Utz (a firm) v Dale (VSCA) - contract - partnership - Protean Holdings ‘split’ of trial - permission to rely on privilege against self-incrimination - appeal allowed to extent of variation of orders
Carsales.Com Limited v One Way Traffic Ltd (VSC) - consumer law - comparative advertising campaign - misleading or deceptive conduct, or conduct likely to mislead or deceive established
Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove Community Title Scheme 37148 (QSC) - real property - easements - application for statutory right of user in terms of easement document refused
Summaries With Link (Five Minute Read)
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
Court of Appeal of New South Wales
Macfarlan & Simpson JJA; J C Campbell AJA
Negligence - consumer law - appellant injured when she fell off quad bike she was riding at respondents’ recreational facility - appellant sued respondents for negligence and non-compliance with guarantees concerning supply of services under ss60 & 61 Australian Consumer Law - at time of injury appellant being led by instructor employed by respondents - primary judge found in favour of respondents - ss5B, 5F, 5K, 5L, 5M, 5N, 16 & 18(1)(a) Civil Liability Act 2002 (NSW) - ss87M, 87ZA(1)(a), 139A, 139A(3), 139A(4) & 139A(5) Competition and Consumer Act 2010 (Cth) - held: respondents negligent because instructor caused appellant to travel at excessive speed - injury not result of materialisation of obvious risk - activity not dangerous recreational activity - respondents warned appellant of risks of riding quad bike but risk that materialised was not inherent in or incidental to that activity - exclusion of liability clause did not form part of contract with appellant - in any event terms of exclusion clause did not extend to respondents’ negligence - respondents failed to comply with guarantee under s60 they would perform services with due care and skill - entitlement to compensation under Competition and Consumer Act did not preclude award of damages for non-economic loss calculated under s16 Civil Liability Act - appeal allowed.
SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1019
Supreme Court of New South Wales
Stevenson J
Contract - asset sale agreement made between plaintiff as vendor and defendant as purchaser - defendant agreed to purchase certain “Assets” associated with two food stores - agreement provided for deposit which defendant paid - plaintiff operated stores but was not lessee of either store - defendant purported to terminate agreement - plaintiff contended purported termination was repudiation by defendant of obligations under agreement - plaintiff claimed damages for balance of purchase price and losses associated with ongoing leases - defendant sought return of deposit - held: plaintiff not lessee and failed to prove it suffered any loss - parties did not agree to extend Completion Date - “Conditions Precedent” not satisfied prior to Completion Date concerning consent of lessors to assignment of lease - in those circumstances defendant entitled to terminate under agreement - plaintiff not obliged to return deposit to defendant.
Greer v Pickering [2015] NSWSC 1039
Supreme Court of New South Wales
Harrison J
Pleadings - solicitors’ duties - plaintiff sued second defendant solicitor alleging negligence and breach of retainer in course of acting for her on purchase of property - plaintiff sought to amend current pleading and to file second further amended statement of claim to regularise pleadings in light of settlement of case against first defendant who had remained in possession of property beyond what plaintiff contended was his entitlement - held: amendments should have been made before present time - proposed amendment would greatly assist trial judge in understanding case - plaintiff permitted to amend statement of claim.
Clayton Utz (a firm) v Dale [2015] VSCA 186
Court of Appeal of Victoria
Ashley, Tate & Ferguson JJA
Contract - evidence - partnership - respondent sued firm for wrongful repudiation of partnership agreement - board of firm expelled respondent from partnership - interlocutory orders permitted respondent to ‘split’ his case based on rule in Protean (Holdings) Ltd v American Home Assurance Co [1985] VicRp 18 and to rely upon privileges against self-incrimination and exposure to penalty - firm sought leave to appeal against orders - held (by majority): appeal allowed only to extent of variation of orders - trial judge correct to order a Protean Holdings ‘split’ of trial but not wholly on basis of reasons given - trial judge correct to conclude privilege against self-incrimination available and respondent could rely upon it until and unless he decided to give evidence to conduct positive case in rebuttal of allegations.
Carsales.Com Limited v One Way Traffic Ltd [2015] VSC 367
Supreme Court of Victoria
Judd J
Consumer law - misleading or deceptive conduct - plaintiff and defendant were competitors in same market - claim arising from comparative advertising campaign conducted by defendant - plaintiff contended campaign’s dominant message was that whenever buyer enquired about car on plaintiff’s website plaintiff sold buyer’s contact details to multiple dealers unbeknown to buyer and by comparison defendant represented it treated buyers differently because it was not in business of selling contact details to dealers - held: plaintiff established defendant’s advertising campaign falsely represented plaintiff engaged in unauthorised trafficking of confidential information to client dealers without potential buyers’ knowledge or consent - defendant misleadingly conveyed it was not in business of providing contact details - defendant had engaged in conduct that is misleading or deceptive or likely to mislead or deceive Australian public contrary to s18 Australian Consumer Law.
Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove Community Title Scheme 37148 [2015] QSC 179
Supreme Court of Queensland
Applegarth J
Real property - easements - applicant owned vacant lot - apartment development bordered lot - applicant sought statutory right of user under s180 Property Law Act 1974 over common property of development’s Community Title Scheme in terms of easement document granted for benefit of lot by body corporate in 2008 - respondent resisted application to grant easement on terms of 2008 easement document - held: applicant did not establish it was reasonably necessary in interests of effective use in reasonable manner of lot have access by development’s car park in manner proposed - not consistent with public interest that proprietary rights of owners of development’s common property should be interfered with in the circumstances - applicant did not satisfy Court that respondent’s refusal to agree to imposition of an easement in terms of 2008 document was unreasonable in the circumstances - application refused.