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Benchmark Podcast: Friday, 5 June 2015

Daily Composite

Daily Insurance

Weekly Law Review

Case Summaries

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.
Rogers (I B)
[From Benchmark Friday, 29 May 2015]

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Donaldson v Natural Springs Australia Ltd [2015] FCA 498
Federal Court of Australia
Beach J
Corporations - contract - interference with contractual relations - plaintiff was previous director of first defendant - plaintiff claimed defendants intentionally interfered with transfer of his shares in first defendant to second company causing him loss - plaintiff made claims against defendants in breach of contract, interference with contractual relations and oppression under s232 Corporations Act 2001 - plaintiff sought damages or order that defendants purchase his shares in company - ss140, 1071B, 1072F & 1072G - held: no oppressive conduct, breach of express or implied terms of Constitution or interference with contractual relations established - plaintiff unsuccessful on all claims - proceeding dismissed.
Donaldson (B)
[From Benchmark Thursday, 28 May 2015]

Pola v Australia and New Zealand Banking Group Ltd [2015] NSWCA 146
Court of Appeal of New South Wales
Bathurst & Bergin CJJ; Young AJA
Real property - mortgages - appellants borrowed amount from bank secured by mortgages over properties - appellant defaulted - bank took possession of properties - bank exercised power of sale - property sold - bank sued appellant for balance of debt - appellant contended bank failed to discharge its duty as mortgagee to “take reasonable care to ensure that the property is sold at market value” under s85 Property Law Act 1974(Qld) - trial judge found bank breached its duty in respect of advertising of property but otherwise dismissed cross-claim - parties appealed - held: trial judge correct to find bank breached duty under s85 by failing to refer to valuable water allocation in advertisements for sale - trial judge followed orthodox and appropriate process of assessing expert evidence in respect of valuation of market value - reduction of judgment in bank’s favour without error - appeal and cross-appeal dismissed.
Pola (B C)
[From Benchmark Thursday, 28 May 2015]

Violi v Commonwealth Bank of Australia [2015] NSWCA 152
Court of Appeal of New South Wales
Emmett JA, Bergin CJ in Eq & Sackville AJA
Default judgment - appellant sought to appeal from primary judge’s dismissal of motion seeking to set aside default judgment entered against him in favour of bank under r36.15(1) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) - substituted service - whether default judgment entered irregularly - whether adequate explanation for delay - interests of justice - held : Court satisfied primary judge erred in interpreting concession made by appellant’s counsel concerning issue of delay and as a result failed to properly consider whether default judgment should be set aside - Court satisfied it was in interests of justice to allow defendant in to defend case on merits - sufficient cause to set aside default judgment - appeal allowed.
Violi (B)
[From Benchmark Wednesday, 3 June 2015]

Hancock v Rinehart [2015] NSWSC 646
Supreme Court of New South Wales
Brereton J
Equity - trusts and trustees - proceedings concerning administration trust created by a deed of settlement - first defendant (Gina Rinehart) was trustee and her four children were beneficiaries - two beneficiaries sought removal of first defendant for misconduct - first defendant resigned - trust’s main asset was shareholding in company - whether amendments made in 2006 to the constitution of company should be declared ineffective because first defendant’s consent to them was fraud on a power - appointment of replacement trustee - access to trust documents - taking of accounts - held: not established first defendant acted in breach of trust or for improper or extraneous purpose in consenting to amendments - trust bound by amendments - Court concluded second plaintiff was to administer the trust, that first defendant deliver up trust documents - orders made for taking accounts - claim that amendments to constitution of company void was dismissed.
Hancock (I B C)
[From Benchmark Monday, 1 June 2015]

Carangelo v State of New South Wales [2015] NSWSC 655
Supreme Court of New South Wales
Adamson J
Negligence - psychiatric injury - chronic adjustment disorder - plaintiff sued State for psychiatric injury due to breaches of duty by Commissioner of Police for which State was vicariously liable - plaintiff claimed Commissioner failed to take reasonable precautions against risks of psychiatric injury at two points in his service - Sch 1 cl 2, ss5B, 5D, 5E, 5R, 13, 16 & 42 Civil Liability Act 2002 - held: State negligently failed to refer plaintiff to Police Medical Officer and a private psychiatrist - State negligently failed to forewarn plaintiff of impending Police Integrity Commission inquiry or to support him through inquiry and subsequent action under s 181D Police Act 1990 - factual causation not established - judgment for State.
Carangelo (I)
[From Benchmark Tuesday, 2 June 2015]

Goldsmith by her tutor the New South Wales Trustee and Guardian v Bisset (No 3)[2015] NSWSC 634
Supreme Court of New South Wales
Campbell J
Negligence - plaintiff child with development disabilities and not wearing a helmet was riding bike out of parking lane and into traffic lane when she was stuck by defendant’s car - plaintiff suffered head and brain injuries - separate determination of issue of liability - whether plaintiff’s injuries caused by defendant’s negligence - whether plaintiff guilty of contributory negligence - s138 Motor Accidents Compensation Act 1999 - ss5D & 5R Civil Liability Act 2002 - held: risk was foreseeable - defendant failed to keep proper look-out - had defendant kept proper lookout accident could have been avoided - defendant’s negligence was necessary condition of plaintiff’ injury - no contributory negligence - judgment for plaintiff - damages to be assessed.
Goldsmith (I)
[From Benchmark Tuesday, 2 June 2015]

Xiao Hui Ying v Perpetual Trustees Victoria Ltd [2015] VSCA 124
Court of Appeal of Victoria
Beach & McLeish JJA; Dixon AJA
Trusts - transfer of land - fraudulent design - applicant and another lived on land as husband and wife - primary judge gave judgment for respondent against applicant and Fitzgerald in amount following default on loans - primary judge held that the land, previously transferred by Fitzgerald to Xiao without payment of any purchase price, was held on resulting trust for Fitzgerald with result land was held by Xiao on trust for Fitzgerald - primary judge made orders for appointment of receiver and trustee for sale of land to satisfy the judgment debt- applicant sought to appeal from order declaring that she held land on trust for Fitzgerald’s benefit and from orders requiring sale of land - natural love and affection - presumption or resulting trust - whether presumption of advancement - held: declaration should not be disturbed - application did not raise point with prospect of success that was real in sense of not being fanciful - submission that transfer made for valuable consideration was without substance - challenges to finding as to Fitzgerald’s intention misconceived - leave to appeal refused.
Ying (B)
[From Benchmark Friday, 29 May 2015]

Nom De Plume Nominees Pty Ltd v Fingal Developments Pty Ltd [2015] VSCA 129
Court of Appeal of Victoria
Mandie & Kyrou JJA
Stay - applicant sought stay of orders pending hearing and determination of proposed appeal - whether arguable grounds of appeal - justice - balance of convenience - held: there appeared to be arguable grounds of appeal - however Court not satisfied that if no stay granted there would be a real risk of appeal being rendered nugatory - successful plaintiff entitled to the fruits of its judgment - no good reason advanced for granting stay - application dismissed.
NomDePlume (I B)
[From Benchmark Tuesday, 2 June 2015]

Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126
Court of Appeal of Victoria
Santamaria, Ferguson & McLeish JJA
Real property - caveat - contract - applicant sought to appeal from decision granting application under s90 Transfer of Land Act 1958 (Vic) for removal of caveat - whether trial judge erred in finding contract for sale of land validly terminated following issuing of notice of default and rescission - whether trial judge erred in holding balance of convenience favoured removal of caveat - whether trial judge erred in approach under s90 - held: applicant failed to show primary judge erred either in finding no prima facie case for maintaining caveat or in finding balance of convenience favoured its removal - appeal dismissed.
Carbon (B)
[From Benchmark Tuesday, 2 June 2015]

HBU Properties Pty Ltd v Australia and New Zealand Banking Group Ltd [2015] QCA 95
Supreme Court of Queensland
Holmes & Phillipides JJA; Mullins J
Detinue - possession - appellant as trustee for trust entered into rental agreement with respondent bank for hire of motor vehicle - appellant’s obligations of HBU guaranteed by directors pursuant to a written guarantee and indemnity - appellant did not make the monthly payments pursuant to the rental agreement - receivers and managers appointed - bank served a notice of termination of the rental agreement and a notice demanding possession of the vehicle - appellant did not deliver up vehicle- bank sought order for possession - primary judge ordered that the bank recover possession of the vehicle - held: contention failed that bank had received sufficient funds from enforcement of securities granted to it by company which it was bound to apply to repay appellant’s debt - no error by primary judge in requiring final hearing of application to proceed - provision of Code of Banking Practice relied on by appellants did not relate to proceeding - appeal dismissed.
HBU (I B)
[From Benchmark Monday, 1 June 2015]

CRIMINAL

Executive Summary

Ewen v R (NSWCCA) - criminal law - offences of sexual intercourse without consent - appeals against conviction and sentence dismissed

Summaries With Link

Ewen v R [2015] NSWCCA 117
Court of Criminal Appeal of New South Wales
Basten JA; Simpson & Davies JJ
Criminal law - appellant found guilty of offences of sexual intercourse without consent against same complainant - appellant was sentenced to 12 years imprisonment with non-parole period of 8 years (taking into account guilty pleas on additional charges) - appellant appealed against convictions and sought leave to appeal against sentence - whether trial judge had failed to direct or warn himself resulting in failure to comply with s133 Criminal Procedure Act 1986 - presumption of innocence - Robinson/Murraydirection - warning pursuant to s165(1)(c) Evidence Act 1995 - flight as consciousness of guilt - whether verdict unsafe and unsound - held: convictions not unreasonable or unsupportable on evidence - no identifiable miscarriage of justice - leave granted to appeal against sentence - appeals against conviction and sentence dismissed.
Ewen

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