Appeal

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.

Great Investments Ltd v Warner [2016] FCAFC 85

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

Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and another [2016] FWCFB 3370

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.

Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97

CONTRACT – sale of business – vendor entitled to interest on outstanding contract price unless in default – whether vendor in default by allegedly failing to make certain adjustments – CONTRACT – sale of business – vendor obliged to assist purchaser in certain respects – whether breach of contract –whether obligation required unilateral assistance absent request from purchaser – DAMAGES – whether evidence of causation and loss sufficient – PROCEDURE – whether new argument can be raised for first time on appeal

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.

National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56

PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP

Capogreco v Rogerson [2016] NSWCA 61

APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event
  
COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise

Robert Angyal SC appeared for the appellant

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave

Robert Angyal SC appeared for the successful appellant.

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

Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192

COSTS - whether, in circumstances where the Full Court has allowed an appeal from a decision of a single judge of the Court not to permit the plaintiffs to amend their Statement of Claim and then has re-exercised the Court’s discretion in respect of that application to amend by permitting amendments some of which were not brought forward before the primary judge, it was appropriate for the Full Court to set aside the order for costs made by the primary judge in respect of the hearing before her and make such order for costs as, in all the circumstances, the Full Court considered to be just – whether, in the events which have happened, the costs of the appellants incurred before the primary judge should be paid or substantially paid by the respondents

PRACTICE AND PROCEDURE - whether a dissenting judge should express reasons concerning a consequential issue

David Rayment appeared for a respondent

Ferella v Key Nominees Pty Limited [2015] NSWCA 401

PRACTICE – summary dismissal – application for leave to appeal – order preventing re-litigation of the same cause of action without leave – whether fresh proceedings within scope of order – no error in decision of primary judge – no explanation for why leave not sought

LEGISLATION - Real Property Act 1900 (NSW), s 58

Richard Parsons appeared

TriCare (Hastings) Limited v Allen [2015] NSWCA 344

APPEAL – whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent

Abdul-Rahman v WorkCover Authority of NSW [2015] NSWSC 1483

CIVIL LAW - workers compensation insurance – requirement for employer to hold current policy – debt or civil penalty arising from failure of employer to hold policy – relevant limitation period – appeal against decision of Magistrate – whether action constituted “proceedings for an offence” – whether Magistrate so found – submission that Court bound by purported finding – submission rejected – combative approach to litigation – whether notice of contention should be permitted – conflicting versions of conversations between counsel – when cause of action accrued to the Authority – ambiguity in legislation – appeal allowed

Caason Investments Pty Ltd v Cao [2015] FCAFC 94

Counsel | David Rayment

PRACTICE AND PROCEDURE – application for leave to appeal - application for leave to amend pleading - representative proceeding under Federal Court of Australia Act 1976 (Cth) Pt IVA – claim for compensation for loss or damage resulting from misstatement in, or omission from, disclosure document under Corporations Act 2001 (Cth) s 729 - claims of misleading or deceptive conduct - causation – market-based causation – whether primary judge erred in rejecting proposed amendments to reflect market-based causation case – whether the market-based causation case is a viable one in the context of the claim under s 729 - whether reliance is a necessary element under s 729 - leave to appeal granted – appeal allowed.

Corporations Act 2001 (Cth) ss 728729(1), 729(2), 1041H
Australian Securities and Investments Commission Act 2001(Cth) s 12DA 
Corporate Law Economic Reform Program Bill 1998 (Cth)
Fair Trading Act 1999 (Vic) s 9
Federal Court of Australia Act 1976 (Cth) s 31APt IVAs 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55