Benchmark Logo.

AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Benchmark Podcast: Friday, 12 December 2014

Weekly Law Review

Case Summaries

Cantarella Bros Pty Limited v Modena Trading Pty Ltd [2014] HCA 48
High Court of Australia
French CJ, Hayne, Crennan, Kiefel & Gageler JJ
Trade mark - parties advertised and sold coffee products - appellant claimed respondent infringed its registered trademarks "ORO" and "CINQUE STELLE" - respondent cross-claimed registration of trademarks should be cancelled on basis trade marks were not inherently adapted to distinguish goods for which they were registered - appellant succeeded in Federal Court - Full Court of Federal Court upheld respondent’s appeal -inherently adapted to distinguish - ordinary signification - held: trademarks "ORO" and "CINQUE STELLE" were inherently adapted to distinguish the goods for which they were registered from the goods of other persons, within the meaning of s41 Trade Marks Act 1995 (Cth) - appeal allowed.
Cantarella Bros Pty Limited (B)
[From Benchmark 5 December 2014]


Read full summaries »
    Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50
    High Court of Australia
    French CJ; Hayne, Bell, Gageler & Keane JJ
    Judicial review - standing - Minister approved development application made by second and third respondents for commercial development under s162 Planning and Development Act 2007 (ACT) - development was to include supermarket and specialty shops at centre - second and third appellants each conducted supermarket business at nearby centre - first appellant was second appellant's landlord - primary judge concluded appellants were not persons aggrieved by Minister's decision because adverse effects were 'too remote' and interests not sufficiently ‘directly affected' - Court of Appeal dismissed appeal - held: Court rejected existence of general rule that mere detriment to economic interests of business would not give rise to standing - Court held supermarket businesses were persons aggrieved by Minister's decision and allowed their appeals - landlord's appeal dismissed.
    Argos Pty Ltd (I C G)
    [From Benchmark 11 December 2014]
     
    Challenger Life Company Ltd v Estate of the late Real [2014] FCA 1325
    Federal Court of Australia
    Jacobson J
    Life insurance - competing arguable claims between beneficiary nominated by policyholder and beneficiaries under Will - insurance company plaintiff sought direction under s215 Life Insurance Act 1995 (Cth) that it pay proceeds of policy into Court to be dealt with in accordance with orders of Court - plaintiff sought declaration that by doing so it had discharged its obligations under the policy - construction of policy documentation - held: Court had power to decide between competing claims as an incident of exercise of the jurisdiction of Court under s215 - upon payment into Court, insurance company discharged from any further liability.
    Challenger Life Company Ltd (I B)
    [From Benchmark 9 December 2014]
     
    Powell v Stone [2014] NSWSC 574
    Supreme Court of New South Wales
    Brereton J
    Real property - caveat - plaintiff husband sought an order that defendant wife withdraw a caveat lodged over certain property - underlying the claim were orders made between parties in Family Court of Australia - caveat claimed an interest as a person with a right to have the land sold and to receive a portion of the proceeds of sale - held: a right to proceeds of sale of property was not an interest in property - wife never had an interest in land - husband ordered to sell land and had obligation akin to that of a trustee for sale to do so and account for proceeds including in part to wife - no caveatable interest in the land itself - caveat doomed to fail and was eventually removed by agreement - wife to pay husband's costs.
    Powell (B)
    [From Benchmark 10 December 2014]
     
    McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729
    Supreme Court of New South Wales
    Bergin CJ in Eq
    Misleading or deceptive conduct - unconscionable conduct - plaintiff bought purported Albert Tucker painting at Christie’s auction - soon after auction, Christie’s became aware painting might be a forgery, but remained silent - much later, plaintiff discovered painting was a forgery - sued Christie's for misleading or deceptive conduct, unconscionable conduct, deceit, and money had and received - also sued vendor for misleading or deceptive conduct and vendor’s director for being knowingly involved - also sued agent for misleading or deceptive conduct, breach of contract, breach of fiduciary duty, in negligence, and secret commission regarding other purchase of artwork - held: plaintiff succeeded against all defendants for misleading or deceptive conduct - Christie's liability 85% - vendor’s liability 10% - agent’s liability 5% - plaintiff succeeded against Christie's for unconscionable conduct, deceit and money had and received - agent also liable for breach of fiduciary duty regarding secret commissions.
    McBride (I)
    [From Benchmark 8 December 2014]
     
    Perpetual Trustee Company Limited v Stojcevski [2014] NSWSC 1718
    Supreme Court of New South Wales
    Adamson J
    Professional negligence - Perpetual sought order for possession of property from husband and wife who were joint registered proprietors - judgment for possession entered against wife - husband cross-claimed against solicitors who acted in obtaining the mortgage - husband alleged solicitor breached retainer and was negligent in failing to require him to obtain separate legal advice and failing to explain transaction documents to him - husband contended that, in circumstances where solicitor had been told husband and wife had separated, he was obliged to make enquiries to satisfy himself of state of the relationship before advising them jointly - held: duties owed by a solicitor to clients did not require interrogation about state of clients' marriages - Court not satisfied solicitor’s conduct fell short in any way of standards expected of reasonably competent solicitors - evidence established he met required standards of care and diligence - cross-claim dismissed.
    Perpetual Trustee Company Limited (I B)
    [From Benchmark 8 December 2014]
     
    Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717
    Supreme Court of New South Wales
    White J
    Contract - estoppel - plaintiff alleged it was entitled to occupy part of premises owned by first to fourth defendants under agreement for lease - alternatively plaintiff contended it was entitled to occupy premises pursuant to agreement between it and fifth defendant whereby it would lease premises from first to fourth defendants and grant it sublease - alternatively plaintiff contended defendants estopped from denying existence of such an equitable lease or sublease - held: plaintiff entitled to enforce an equity arising by estoppel - appropriate equitable relief was to make good assumption that plaintiff was induced to adopt - orders that first to fourth defendants execute a lease on terms - parties to bring in short minutes to give effect to orders.
    Construction Technologies Australia Pty Ltd (B C)
    [From Benchmark 5 December 2014]
     
    Ipex ITG Pty Ltd (in liq) v Victoria [2014] VSCA 315
    Court of Appeal of Victoria
    Neave, Santamaria & Kyrou JJA
    Costs - State appealed from decision in which primary judge failed to make costs order against non-party for costs incurred by State in proceedings - State contended findings of primary judge were against weight of the evidence - State also claimed primary judge erred in refusing to make costs order because he was not satisfied non-party was ‘true plaintiff’ - State claimed that in accordance with principles of judicial comity, primary judge should have found non-party funded proceedings and it was in the interests of justice that he be liable for State’s costs - held: primary judge took too restrictive a view of the principles which determined when a non-party would be ordered to pay costs - exceptional remedy of non-party costs order justified in the circumstances - appeal allowed.
    Ipex ITG Pty Ltd (in liq) (B)
    [From Benchmark 9 December 2014]
     
    Divadeus Pty Ltd v Victorian WorkCover Authority [2014] VSC 578
    Supreme Court of Victoria
    McMillan J
    Insurance - company appealed pursuant to s36J Accident Compensation (WorkCover Insurance) Act 1993 (VSC) from determination of Victorian WorkCover Authority that its WorkCover premiums should be assessed on basis that workplace industry classification which most closely corresponded with company’s predominant activity at certain workplace (Kilsyth workplace) was security services - company contended correct workplace industry classification was labour hire - meaning of labour hire - held: premiums payable by company should be reassessed on basis work conducted at the various imputed workplaces was that which most closely corresponded to the predominant activity of the particular client, but that the workplace industry classification that most closely corresponded to company’s predominant activity at the Kilsyth workplace was to remain security services - appeal allowed.
    Divadeus Pty Ltd (I G)
    [From Benchmark 9 December 2014]
« Read Less

Podcast Archive