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


Thursday, 30 October 2014
Executive Summary (One Minute Read)
NSW v Brown (NSWCA) - employment contracts - industrial law - of such importance - leave to appeal refused 
In the matter of Epsilon Knowledge Pty Ltd (NSWSC) - corporations - winding up - creditor's statutory demand set aside
Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd (QSC) - equity - trusts and trustees - director of company caused another company to enter contract for purchase of land - no breach of fiduciary duties
J M Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) (QSC) - pleadings - building contract - leave to file and serve fifth amended statement of claim
Elton v Public Trustee (SASC) - probate - Wills - lost document did not extinguish prior Will
Goldedge Holdings Pty Ltd v Liquor and Gambling Commissioner (SASC) - leases - liquor and gaming - no error in Commissioner's decision to transfer gaming machine licence to lessor and accepting lessor's offer to sell entitlements 
Summaries With Link (Five Minute Read)
NSW v Brown [2014] NSWCA 365
Court of Appeal of New South Wales
Basten & Leeming JJA; Bergin CJ in Eq
Employment contracts - industrial law - respondent worked as Aboriginal Education Officer (AEO) at school - respondent employed by applicant on series of temporary contracts - employment terminated - permanent AEO position at school advertised - respondent not successful - interview process flawed - respondent sought declaration contract unfair within s105 Industrial Relations Act 1996 (NSW) - trial judge found contract unfair only in that it did not contain significant weight term - trial judge found selection process unfair and rendered contract unfair - trial judge varied contract to include significant weight term and ordered applicant pay respondent 12 months' salary as compensation for loss of income and employment opportunity and $5,000 as compensation for costs associated with psychiatric injury - applicant sought leave to appeal pursuant to s403B - of such importance - held: no issue of importance such that leave to appeal should be granted - decision would not have wide impact with respect to temporary employment in public service - trial judge erred by finding post-termination conduct rendered employment contract unfair but this did not warrant a grant of leave - remedy provided in s106(3) available even though applied after the termination of the contract - summons dismissed.
In the matter of Epsilon Knowledge Pty Ltd [2014] NSWSC 544
Supreme Court of New South Wales
Brereton J
Corporations - winding up - plaintiff sought pursuant to s459G Corporations Act 2001 (Cth) order setting aside creditor's statutory demand served on it by defendant - demand arose out of staff hosting service agreement - order sought on basis there was genuine dispute about existence and amount of debts and that plaintiff had offsetting claims against defendant - held: plaintiff established genuine dispute and succeeded in raising offsetting claim - creditor's statutory demand set aside.
In the matter of Epsilon Knowledge Pty Ltd
Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd [2014] QSC 265
Supreme Court of Queensland
Jackson J
Equity - trusts and trustees - plaintiff company entered contract for purchase of land – second defendant was director and shareholder of company – both other directors resigned – one of the other directors was only other shareholder – other directors told second defendant their business dealings were at an end – second defendant allowed contract to purchase land to lapse – second defendant was sole director of first defendant - second defendant caused first defendant to enter new contract on same terms as plaintiff's contract – plaintiff claimed second defendant acted in breach of fiduciary duty or duty under ss181(1) or 182(1) Corporations Act 2001 (Cth) as director of plaintiff in causing first defendant to enter contract to buy lot and in proceeding with project - claims against first defendant were based on liability of a person who had received and become chargeable with trust property, or who had assisted with knowledge in a dishonest and fraudulent design on part of the trustees, or who was the company alter ego of a defaulting director - held: second defendant did not act in breach of fiduciary duty without informed consent - second defendant acted in good faith in best interests of plaintiff and for a proper purpose and did not improperly use her position as a director of the plaintiff - plaintiff not entitled to the relief it claimed against either the first or second defendants.
Cornerstone Property & Development Pty Ltd
J M Kelly (Project Builders) Pty Ltd v Toga Development No. 31 Pty Ltd (No 6) [2014] QSC 262
Supreme Court of Queensland
Flanagan J
Pleadings - applicant sought leave to file and serve a proposed fifth further amended statement of claim - most significant amendment sought was addition of paragraphs which pled that liquidated damages provisions of a building contract between applicant and defendant was void and of no effect as a penalty - delay - whether pleadings inconsistent with prior court rulings - held: leave granted to file and deliver a fifth amended statement of claim containing the penalty plea - leave granted to file and deliver amended reply and answer which cross-referenced to penalty plea - any plea in relation to variation claim to be pleaded in accordance with Court's reasons.
J M Kelly (Project Builders) Pty Ltd
Elton v Public Trustee [2014] SASC 149
Supreme Court of South Australia
Stanley J
Wills - probate - deceased made Will in 1991 which appointed Public Trustee as executor of deceased's estate - under Will, sole beneficiary of deceased's estate was nephew - deceased died - nephew had predeceased him - Public Trustee obtained grant of probate of deceased's Will - plaintiff sought revocation of grant of probate and admission to probate of document entitled "Irrevocable Order" as last Will of the deceased - plaintiff claimed deceased created Irrevocable Order in 1996 - plaintiff alleged Irrevocable Order should be admitted to probate as a lost and informal Will pursuant to s12 Wills Act 1936 (SA) - neither original nor copy of Irrevocable Order had been located - held: sometime in 1996, deceased prepared Irrevocable Order - evidence relating to terms of Irrevocable Order inconsistent and ultimately unreliable - Irrevocable Order did not revoke or extinguish 1991 Will.
Goldedge Holdings Pty Ltd v Liquor and Gambling Commissioner [2014] SASC 147
Supreme Court of South Australia
Kourakis CJ
Leases - gaming and liquor - lessor terminated lease due to lessee's default - upon entering lease, parties contemplated that lessee would apply for gaming machine licence - lease included provision that, on termination, licences held by lessee would be transferred to lessor - Commissioner transferred gaming machine licence to lessor and accepted lessor's offer to sell entitlements attached to licence - lessee contended it was not obliged to transfer all of the transferrable gaming machine entitlements with the licence, but that it was entitled to sell the entitlements in accordance with provisions of Gaming Machines Act 1992 (SA) and to retain proceeds of sale - lessee sough that lessor make restitution to it for wrongfully retaining the proceeds of the sale of entitlement - held: lessee not entitled to strip gaming machine licences of entitlements before transferring licences to lessor - not unconscionable of lessor to enforce those terms - Commissioner bound by law to accept and act on lessor's offer to sell because lessor was the holder of the gaming machine entitlements - lessor did not act unconscionably in selling the entitlements and retaining the proceeds of sale - claim dismissed.
Goldedge Holdings Pty Ltd