From the Federal Court of Australian
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees – whether Tribunal denied the applicant procedural fairness – whether there was no evidence to support findings made by the Tribunal – whether Tribunal failed to consider applicant’s submissions – whether Tribunal’s reasons were inadequate.
David Rayment represented the Respondent.
Reasons for judgment can be found here.
From the Family Court of Australia:
FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia v GPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.
Michelle McMahon represented the first and second appellants.
Reasons for Judgement can be found here.
From the Civil and Administrative Tribunal New South Wales:
BUILDING AND CONSTRUCTION – Home Building – successor in title seeking compensation for allegedly defective work from owner-builder – when work was complete – defective work – whether major defect – whether defect in a major element – what constitutes waterproofing – cost of rectification – whether work order should be made in respect of defective work carried out pursuant to owner-builder permit.
Michelle McMahon represented the Respondent.
Reasons for Decision can be found here.
Kirralee Young has had a success in a shareholder dispute in the Court of Appeal regarding illusory consideration and uncertainty in respect to the interpretation of a shareholders agreement.
The decision relates to a dispute between the parties relating to the meaning and operation of certain funding provisions in a shareholders agreement. The agreement regulated their rights as equal shareholders in a company. In broad terms, one shareholder provided the intellectual property and expertise for the business and the plaintiff was required to provide funding. Despite the agreement being in place for over 12 months, one shareholder contended that the agreement was void and uncertain because the funding provisions were illusory and uncertain in the sense that they did not impose a definitive obligation on the other party to provide such funding. i.e there was an unfettered discretion.
It cannot be doubted that promises with no substance, or that are ‘illusory’, are not good consideration. For example, A cannot promise to buy B’s goods in return for ‘whatever A feels like paying’. This type of consideration is discretionary and without substance and is therefore not good consideration. Nor can it be doubted that a promise is not illusory because the promisor has some discretion in how its obligations are to be performed. It is only necessary that there be an obligation that the promise be performed and that the discretion is contained within the defined parameters.
The question in this case was whether the discretion was completely unfettered. The plaintiff argued that it did not have a completely unfettered discretion as to the provision of funding because it was required to act in good faith under the agreement and pursuant to duties arising at common law and in equity. The defendant argued these duties were not fetters on the discretion because they could not be specifically enforced.
The Court of Appeal found in favour of the plaintiff that the consideration was not illusory consideration nor were the provisions uncertain and ultimately that the shareholders agreement was valid. They further found that good faith obligations can act as a fetter and that they did not need to be specifically enforceable. It was enough that those obligations could sound in damages only.
Further details of the case can be found here .
Steven Cominos appeared for the 4th and 5th defendants on a motion to dismiss a claim against them for unconscionable conduct and misleading or deceptive conduct. The claim was dismissed in its entirety by Pembroke J on 25 May 2018.
Steven Cominos appeared on behalf of 2 former directors of RSL Lifecare Limited at the public inquiry under the Charitable Fundraising Act 1991 (NSW) (CFA). During the inquiry, various allegations were made against RSL Lifecare and a number of its former directors regarding the use of funds derived through fundraising activites, in relation to compliance with the CFA’s requirements and regarding the exercise of their fudicuary duties in receiving consultancy fees. Neither of the former directors for whom Mr Cominos appeared were referred to any regulatory body for investigation or further action.
Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.
From the New South Wales Civil & Administrative Tribunal Appeal Panel:
COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle
COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle
Michelle McMahon appeared for Adam Rekrut and Sandra Scott.
In the New South Wales Court of Appeal:
SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered
David Smallbone appeared with David Rayment for the Appellant.
From the Federal Court of Australia:
MIGRATION – application for judicial review of a decision of the Minister to refuse a visa under s 501(1) of the Migration Act 1958 (Cth) – whether Minister misconstrued or misapplied s 501(6)(d)(i) of the Act – whether Minister required to give consideration to a psychologist’s report
Dr Stephen Tully appeared pro bono for the applicant.
From the Federal Circuit Court of Australia:
FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.
Michelle McMahon appeared for the Independent Children's Lawyer.
From the Supreme Court of New South Wales:
CONTRACTS - existence of a contract - “postal rule” - whether Trading Agreement contained obligation to supply absent acceptance of an order - - HELD: no executed contract - no obligation to supply - PRACTICE AND PROCEDURE - Practice Notice SC Eq 3 para 50 - “stop-watch” method of trial
David Rayment appeared for the Defendant.
From the Supreme Court of New South Wales:
BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach
Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.
From the Full Federal Court of Australia:
PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia
From the NSW Civil & Administrative Tribunal:
APPEAL – whether leave to appeal should be granted – whether Tribunal below failed to give adequate reasons – whether Tribunal below failed to consider claims – whether no evidence to support findings made below
EXTENSION OF TIME – whether extension of time needed – application of Civil and Administrative Rules 2014 (NSW) rr 6 and 13 and Interpretation Act 1987 (NSW) s 76 – whether extension of time should be granted
Michelle McMahon appeared for Adam Rekrut and Sandra Scott.
From the High Court of Australia:
Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).
Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).
Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".