EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction.
Renae Kumar represented the Respondent.
Reasons for the decision can be found here.
Ian Neil S.C. and Renae Kumar appeared as counsel for INPEX Australia Pty.
The reasons for the decision can be found here.
EQUAL OPPORTUNITY — leave to proceed — principles applying to grant of leave — race discrimination in education — ethno-religious origin — victimisation.
Renae Kumar represented the Respondent.
The reasons for the decision can be found here.
CIVIL PROCEDURE – discontinuance – costs – no consent to discontinue without paying costs – plaintiff sought leave to discontinue with no order as to costs – proceedings lacking practical utility – both defendants impecunious – defendants’ cross-claim abandoned – no right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff – litigation had begun to “feed on itself” – Uniform Civil Procedure Rules 2005 (NSW), r 12.1
COSTS – discontinuance – usual rule that discontinuing party pay defendant’s costs – power to order otherwise – plaintiff sought leave to discontinue with no order as to costs – Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2)
Tim Castle SC appeared for the Respondent.
Reasons for the decision can be found here.
CIVIL PROCEDURE — Discontinuance — Costs — No consent to discontinue without paying costs — Plaintiff sought leave to discontinue with no order as to costs — Proceedings lacking practical utility — Both defendants impecunious — Defendants’ cross-claim abandoned — No right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff — Litigation had begun to “feed on itself” — Uniform Civil Procedure Rules 2005 (NSW), r 12.1.
COSTS — Discontinuance — Usual rule that discontinuing party pay defendant’s costs — Power to order otherwise — Plaintiff sought leave to discontinue with no order as to costs — Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2).
Tim Castle SC represented the Respondent.
Reasons for the decision can be found here.
Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means.
Dr Christopher Ward SC represented the Appellants.
Reasons for the decision can be found here.
Equity - Commercial List.
Vary order to increase the amount the second defendant may spend on her costs to $200,000.
Kirralee Young represented the second defendant.
Reasons for the decision can be found here.
ARBITRATION – application to enforce a foreign award – where respondent contends that it did not receive proper notice – where respondent contends that arbitral procedure was not in accordance with the contract between the parties – where respondent contends that the arbitral award involved a breach of natural justice – application to enforce award granted.
Tim Castle SC represented the Applicant.
Reasons for the decision can be found here.
CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.
BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.
BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.
BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.
PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.
Tim Castle SC appeared for the Second and Third Respondent.
Reasons for the decision can be found here.
CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.
BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.
BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.
BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.
PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.
Tim Castle SC represented the Second and Third Respondents.
Reasons for the decision can be found here.
EQUITY – Fiduciary duties – First defendant was the financial controller of the plaintiff school and dishonestly transferred money from the plaintiff’s bank account and diverted the plaintiff’s tax refunds into various bank accounts in his and the second defendant’s name – Barnes v Addy first limb claim against the second defendant for knowing receipt – Whether the second defendant was a recipient of trust property – Whether the second defendant had sufficient knowledge of the trust and its breach to render her personally liable – Alternative restitutionary claim against the second defendant for the benefit of the misappropriations received by her as a volunteer and retained after notice of the plaintiff’s claim – HELD – First defendant breached his fiduciary duties to the plaintiff and is liable to the plaintiff for damages in the amount he stole – HELD – Not established that the second defendant had sufficient knowledge for the purposes of the Barnes v Addy claim – Second defendant liable for restitutionary claim but not for knowing receipt.
Kirralee Young represented the second defendant.
Reasons for the decision can be found here.
PRACTICE AND PROCEDURE – application by the applicant that the respondent provide security for the applicant’s costs – whether the position of the respondent is purely defensive – where there is no cross-claim nor any order sought by the respondent against the applicant – application dismissed.
Tim Castle represented the Applicant.
Reasons for the decision can be found here.
STATUTORY INTERPRETATION – declaratory relief – whether firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 constitutes a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – savings and transitional provisions – ordinary meaning manifestly absurd or unreasonable – extrinsic materials – purposive construction of Firearms Act 1996 – HELD: firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 is a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – amended summons dismissed.
Dr Christos Mantziaris represented the defendant.
The reasons for the decision can be found here.
Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.
Tim Castle represented the Plaintiff.
Reasons for the decision can be found here.
INSURANCE – house fire – claim for indemnity – whether insured responsible for fire – circumstantial case – good faith in taking of defence alleging lack of reasonable dispatch in rectifying property.
Tim Castle and Peter Mann represented the Plaintiff.
Reasons for the decision can be found here.
LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiff entered into contract to purchase a stratum lot in an unregistered plan of subdivision – draft plan annexed to contract showed areas at various levels – whether areas should be understood as areas of the lot at those levels or floor areas at those levels – held that areas should be understood as areas of the lot – no substantial discrepancy between the subject matter of the sale and what was able to be conveyed – plaintiff had no right to rescind.
LAND LAW – contract for sale of land – deposit – vendor entitled to forfeit deposit upon termination for purchaser’s failure to complete – statutory return of deposit – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – no grounds for order for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW).
MISLEADING AND DECEPTIVE CONDUCT – contract for sale of stratum lot in unregistered plan of subdivision – draft plan annexed to contract showed areas of various levels – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – vendor did not engage in conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of Australian Consumer Law – no grounds for order for return of deposit.
Jennifer Mee represented the defendant/cross claimant.
Reasons for the decision can be found here.
Cy–près scheme ordered by Attorney General (NSW). Non-publication order (NSWSC, Lindsay J, 18 February 2020).
Trustee application to save charitable gift to Foundation 41, a defunct institution (a case of supervening impossibility). Cy-près scheme ordered (NSWSC, Slattery J, 17 February 2020).
FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father ’s costs of the appeal in a fixed sum.
Michelle McMahon represented the defendant.
The reasons for the decision can be found here.
From the NSW Court of Appeal:
CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations.
CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator.
David Rayment represented the appellants.
The reasons for the decision can be found here.
Liability limited by a scheme approved under Professional Standards Legislation.