Tim Castle

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd [2016] FCAFC

INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed

Tim D. Castle appeared for the respondent.

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused

Tim D. Castle appeared for Westpac Bank.

Arab Bank of Australia Ltd v Jeitani [2016] NSWSC 617

REAL PROPERTY – possession of land – mortgages - mortgagor in default – sale of properties by mortgagee in possession – GST gross-up clauses in sale contracts – mortgagee required to pay GST on sales – whether gross-up clauses should have been enforced – whether any duty owed in that regard to guarantor of mortgagor – guarantee not called upon – undertaking by mortgagee not to call on guarantor – whether guarantor suffered loss by failure to enforce gross-up clauses

REAL PROPERTY – mortgages – rights of mortgagor – to discharge the mortgage – whether loan and mortgage regulated under the Consumer Credit Code – Business Purpose Declaration signed by mortgagor – whether lender knew or had to reason to believe the loan was wholly or predominantly for personal, domestic or household purposes – refusal by mortgagee to discharge mortgage on the basis that mortgage secured other loans – whether mortgagee acted unreasonably – whether obligation on mortgagor’s part to tender amount owing to mortgagee in the face of refusal to discharge

Tim D. Castle acted for Arab Bank of Australia Ltd.

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted

Tim Castle appeared for the applicant.

Westpac Banking Corporation v Kekatos [2015] NSWSC 1629

PRACTICE AND PROCEDURE – plaintiff’s consent to default judgment being set aside given on the basis of defendant’s sworn evidence which she subsequently admitted was false – application by plaintiff to have default judgment reinstated – circumstances in which a court sets aside orders entered by consent – whether plaintiff entitled to summary judgment – whether bona fide defence on the merits – effect of defendant’s failure to give sworn evidence in opposition to plaintiff’s application

PRACTICE AND PROCEDURE – motion to set aside interlocutory consent order to be brought in the original proceedings to avoid multiplicity of proceedings

CONTRACT – consent orders handed up to resolve interlocutory notice of motion not enforceable contract

CONTRACTS REVIEW ACT – relevance of benefit to borrower from discharge of earlier mortgage to secure loans admitted to be owing – no evidence to displace lender’s entitlement to possession and judgment based on portion of advance that conferred incontrovertible benefit on borrower

Tim Castle appeared for Westpac Banking Corporation.

NHPT and Members of the Companies Auditors and Liquidators Disciplinary Board and Australian Securities & Investments Commission [2015] AATA 445

PRACTICE AND PROCEDURE – application under s 43AA – "slip rule" – whether inconsistency or obvious error – date of effect of suspension of applicant’s registration as an auditor – effect of stay – inconsistency between intention of reasons and decision – application granted Administrative Appeals Tribunal Act 1975 (Cth) s 43AA

Tim Castle appeared for the applicant.

Hill and Members of the Companies Auditors and Liquidators Disciplinary Board and Australian Securities & Investments Commission [2015] AATA 245

CORPORATIONS LAW – auditor’s registration – suspension of registration as an auditor – imposition of conditions on future conduct and professional training –previous conditions imposed by ASIC – whether applicant failed to comply with these conditions – whether applicant failed to perform adequately and properly the duties of an auditor – appropriate remedy – decision affirmed

Corporations Act 2001 (Cth) ss 324DA324DB1292(1), 1292(9)

Australia and New Zealand Banking Group Limited v Desmond Patrick John Last [2014] NSWSC 1719

SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management