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 Castle and Daniel Moujali represented the Respondent.
Reasons for the judgement can be found here.
INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to “redeployment and voluntary redundancy” – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of “all avenues to avoid forced redundancies, including the reduction of contractors” – Whether confined to contractors engaged on fulltime, permanent, basis – Whether employer had undertaken investigation.
INDUSTRIAL LAW – Obligation to consult where introduction of “change” being considered – Whether change was “major” – Whether introduction of change being “considered” – Potential impact of change on dayworkers – Whether employed on day shift – Whether “a change to the numbers of employees per shift.”
INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee’s position as officer of trade union or his having engaged in industrial activity – Reasons of decisionmaker – Onus of proof – Credibility of witness.
EVIDENCE – Credibility of witnesses – Witnesses’ evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence.
INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.
Lisa Doust appeared for the Construction, Forestry, Mining and Energy Union
APPEAL - Community Association - breach of by-law - withholding of consent - Community Land Management Act 1989 (NSW).
Michelle McMahon appeared for the appellant.
POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant’s unfair dismissal claim – application dismissed.
Michael Seck appeared for the Commissioner of Police.
CONSTRUCTION - Home Building Act – s 94(1A) – quantum meruit not just and equitable.
Michelle McMahon appeared for the home owner.
LICENSING – occupational licensing - refusal of operator licence application, cancellation of tattooist licence - fit and proper person - public interest - adverse security determination.
Dr Mantziaris appeared for the Commissioner of Fair Trading and the Commissioner of Police, NSW Police Force.
EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered.
Dr Mantziaris appeared for the Attorney General (NSW).
The NSW Special Commission of Inquiry into the governance and future of the Greyhound Racing Industry in NSW held public hearings between September 2015 and February 2016, after which it received extensive written submissions from parties. The Commissioner, former High Court Justice, Michael McHugh QC, reported on 16 June 2016. [Link to Commission Site]
The final report was released on 7 July 2016, at which time the NSW Government announced plans to close down the industry by 1 July 2017.
Dominique Hogan-Doran SC leading Jodi Steele and Steven Cominos of counsel, instructed by Norton Rose Fulbright and Clayton Utz, acted for the former Chief Executive Officer of Greyhound Racing NSW, Mr Brent Hogan.
MIGRATION – whether the Tribunal misconstrued the requirements of a ministerial direction – whether the Tribunal failed to take relevant considerations into account – real chance test – well-founded fear test – whether the Tribunal failed to apply the correct legal test – whether the Tribunal misconstrued or misapplied case law– whether the Tribunal failed to comply with s.425 of the Migration Act 1954 – no jurisdictional error identified – application dismissed.
OCCUPATIONAL LICENSING – firearms dealers licence – refused – application for administrative review – merits hearing by Appeal Panel – purpose of licence – considerations relevant to fitness and the public interest – refusal affirmed. Firearms Act 1996, s 11(3), s 11(7).
Dr Christos Mantziaris represented the appellant.
COSTS – multiple issues - three separate claims in cross-claim – each party successful on one claim – third claim settled – whether costs should be apportioned – set-off of competing costs orders.
Tim D. Castle appeared for Arab Bank Australia Ltd.
CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth)
EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution
EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice
CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act
PRACTICE AND PROCEDURE — costs — conduct of first defendant brought about the litigation — settlement agreement reached between the parties — defendants ready and willing to perform obligations under settlement agreement — plaintiff failed to perform obligations under settlement agreement — settlement agreement not completed — plaintiff to pay defendants’ costs of the proceedings after the date of the settlement agreement — first defendant to pay second defendant’s costs of the hearing on costs
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
INDUSTRIAL LAW - Termination of protected industrial action notified by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) - order under under s.424 of the Fair Work Act 2009
Lisa Doust appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
INDUSTRIAL LAW - appeal against an interim decision of Commissioner on application by Inco for the approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services (Agreement) pursuant to s.185 of the Fair Work Act 2009
Lisa Doust appeared for the Maritime Union of Australia.
BANKING - whether default interest payable under commercial facility constitutes a penalty.
Tim D. Castle appeared for Arab Bank Australia Ltd.
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.
SUCCESSION – Alteration and revocation of grants - Generally – Revocation and re-grant of administration – Breakdown of working relationships between executors - Removal of executor with no ongoing interest in due administration of the estate.
Tim Castle appeared for the plaintiff.
Liability limited pursuant to a scheme approved under Professional Standards Legislation.