Michelle McMahon

Parsons and ANOR & MASSON

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.

Stevenson v Ashton

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.

 

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97

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.

Wickham & Arnett [2018] FCCA 80

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.

Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

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.

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187

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.

Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25

In the NSW Civil and Administrative Tribunal Appeal Panel  -

COSTS – whether amount claimed or in dispute in proceedings more than $30,000 – whether there are any “special circumstances” to warrant an award of costs – amount claimed or in dispute not more than $30,000 – no special circumstances – costs not awarded

Michelle McMahon appeared for Tenants’ Union New South Wales.

Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216

RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case

RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree

RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only

RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions

EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility

Michelle McMahon appeared for the appellants

Smyth & McDonald v Mason & Mason Investments Pty Ltd t/as House Logic Solutions [2016] NSWCATCD 68

HOME BUILDING – unlicensed contractor – company in administration – proceedings stayed against company – sole director of company joined in personal capacity – misleading and deceptive conduct by sole director

Michelle McMahon appeared for the homeowners

 

Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23

ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons

LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998

Michelle McMahon appeared for the successful respondent

Thompson v Chapman [2016] NSWCATAP 6

HOME BUILDING - Appeal - Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion

LEGISLATION: Home Building Act 1989 - Civil Procedure Act, 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2002 - Civil and Administrative Tribunal Rules, 2014 - Conveyancing Act 1919

Michelle McMahon appeared for the successful respondent