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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Benchmark Podcast: Friday, 27 February 2015

Weekly Law Review

Case Summaries

Tran v Pu [2015] FCA 97
Federal Court of Australia
Beach J
Bankruptcy - appellant’s estate sequestrated pursuant to Registrar’s order - sequestration order made on creditor’s petition filed by respondent - application for review of sequestration order dismissed by Federal Circuit Court judge - primary judge held deed of settlement was a bar to application for review - held: no private contractual bar could foreclose proper application of s52 Bankruptcy Act 1966 (Cth) - primary judge did not engage in task of a rehearing de novo or engage in task required under s52 - appeal allowed - matter remitted. 
Tran (B G)
[From Benchmark 24 February 2015]

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    White v Johnston [2015] NSWCA 18
    Court of Appeal of New South Wales
    Barrett, Emmett & Leeming JJA
    Assault and battery - respondent patient alleged appellant dentist’s treatment constituted assault and was negligently performed - primary judge found dentist had committed assault and battery on patient - dentist contended evidence did not establish absence of therapeutic purpose in treatments she performed, that primary judge erred in relying on evidence admitted to demonstrate tendency to charge for services not performed, and in waiving notice requirement - appellant also contended exemplary damages were excessive - held: evidence did not establish absence of therapeutic purpose - awarding of damages in error - decision to admit evidence relating to malpractice overturned - matter remitted to District Court confined to alternative claim in negligence.
    White (I)
    [From Benchmark 20 February 2015]

    BlueScope Steel Ltd v Cartwright [2015] NSWCA 25
    Court of Appeal of New South Wales
    Beazley P; Ward & Emmett JJA
    Work injury damages - workers compensation - motor vehicle accident - employer contracted with steel manufacturer for transport of steel in containers - truck driver was driving prime mover with attached trailer containing heavy container - truck driver claimed damages for injuries when trailer lurched and rolled - Court held accident caused by tipping of unstable load and that both manufacturer and employer breached duty of care to truck driver - manufacturer had primary liability due to its inadequate packing system, which employer was contractually required to follow - liability apportioned at 85% for steel manufacturer - 15% for employer - held: accident would not have occurred unless prime mover travelling at speed in excess of limit - truck driver failed to establish inadequacy of wedges caused accident - truck driver entirely responsible for injuries - appeal allowed.
    BlueScope Steel Ltd (I B C)
    [From Benchmark 25 February 2015]

    McGeown v NSW Land and Housing Corporation [2015] NSWCA 23
    Court of Appeal of New South Wales
    McColl, Macfarlan & Sackville AJA
    Landlord and tenant - parties entered lease in respect of residential unit - applicant sought leave to appeal from decision of Appeal Panel of New South Wales Civil and Administrative Tribunal to dismiss appeal from Tribunal’s termination of residential tenancy agreement on basis applicant had ceased personally to occupythe premises - Appeal Panel upheld Tribunal’s decision that applicant was in breach of lease and that respondent entitled to order requiring applicant to give up possession - construction of lease - ceased personally to occupy the premises - held: at time respondent served Notice of Termination, applicant had been incarcerated for about eight months - applicant had ceased to be in personal occupation of premises and thereby breached the lease - appeal dismissed.
    McGeown (I B)
    [From Benchmark 25 February 2015]

    Re RB, a protected estate family settlement [2015] NSWSC 70
    Supreme Court of New South Wales
    Lindsay J
    Wills - succession - protected estate - application for approval of family settlement concerning estate of defendant - defendant was a protected person under s38 NSW Trustee and Guardianship Act 2009 (NSW) - statutory Will - family provision releases - lost capacity case - exercise of protective jurisdiction - management and administration of property - held: orders made for approval of family settlement including statutory Will relating to protected person.
    Re RB, a protected estate family settlement (B)
    [From Benchmark 20 February 2015]

    Dimarti v Dimarti [2015] NSWSC 97
    Supreme Court of New South Wales
    Lindsay J
    Contract of compromise – defendant sought orders that consent orders and underlying agreement for compromise be set aside because they were procured by plaintiff’s unconscionable conduct within meaning of ss20, 21 and 22 of the Australian Consumer Law – defendant also contended contract for compromise was an unjust contract within meaning of s7 Contracts Review Act 1980 (NSW) – defendant contended his medical condition operated against full participation in processes leading to entry of consent orders - held: no unconscionable conduct – no unjust contract - defendant gave fully informed consent to contract of compromise he entered and orders made by Court – motion dismissed. 
    Dimarti (B)
    [From Benchmark 24 February 2015]
    Traivelog Pty Ltd v Electrometals Technologies Ltd (Subject to a Deed of Company Arrangement)[2015] QSC 27
    Supreme Court of Queensland
    P McMurdo J
    Corporations - voluntary administration - creditors sought to set aside deed of company arrangement executed by first respondent company - reg 5.3A.07 Corporations Regulations 2001 (Cth) - ss445D, 447A & 513B Corporations Act 2001 (Cth) - delay - held: no ground to set aside DOCA established under s445D(1)(a) & (b) - Court not persuaded DOCA unfairly prejudicial or unfairly discriminatory - application heard more than five months after execution of DOCA, during which time the company continued to trade with consequence those who became creditors, contractors or investors in that period would be likely to be prejudiced from orders sought - application dismissed.
    Traivelog Pty Ltd (B)
    [From Benchmark 23 February 2015]

    West Coast Council v Coverdale (No 2) [2015] TASFC 1
    Full Court of the Supreme Court of Tasmania
    Tennent, Escort & Pearce JJ
    Real property - Council sought declaration that Valuer-General obliged to keep and maintain valuation rolls and to provide valuation lists to Council including particulars of ownership and values of lands subject of marine farm leases - leases were granted in respect of areas in Macquarie Harbour pursuant to Marine Farming Planning Act 1995 (Tas) - Council claimed primary judge erred in failing to determine grant of each of the marine farming leases created an interest in land which was rateable pursuant to section 87(1) Local Government Act 1993 (Tas) - statutory construction - held (by majority): seabed and waters of Macquarie Harbour were Crown land for the purposes of Crown Lands Act 1976 (Tas) - they were Crown lands that are liable to be rated because they were not exempt - Valuer-General under duty to value lands the subject of the leases - appeal allowed.
    West Coast Council (I G)
    [From Benchmark 23 February 2015]

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