Northside Veterinary Property Pty Ltd v Dalmacija Sydney Croatian Club Ltd [2022] nswsc 589

CORPORATIONS - corporate contracting - agency and authority - authority of directors to bind company to contract for the sale of land - contract executed in accordance with s 127(1)(a) of the Corporations Act 2001 (Cth) - where company claims that directors executing contract lacked actual or ostensible authority to bind company - whether plaintiff entitled to make assumptions in s 129 of the Corporations Act 2001 (Cth) - whether company precluded from asserting that assumptions are incorrect - not established that plaintiff actually knew or actually suspected that the company’s constitution had not been compiled with, or that directors were not properly preforming their duties to the company - held that company precluded by s 128(1) of the Corporations Act 2001 (Cth) from asserting non-compliance with its constitution or improper conduct on part of its directors - held that binding contract for sale came into existence

EQUITY - specific performance - contract for the sale of land - discretionary defences to specific performance - where defendant claims lapse of time and protracted negotiations should defeat plaintiff’s claim for specific performance - where defendant claims plaintiff was tricky in procuring contract - where defendant claims specific performance would occasion great hardship upon it - where defendant claims that damages would be an adequate remedy - held that no bar to decree of specific performance had been demonstrated - held appropriate to order specific performance

Robert Angyal SC appeared for the Plaintiff.

Reasons for the decision can be found here.

Chief Disruption Officer Pty Ltd as Trustee for the McDonald Family Trust v Michel, in the matter of Laava ID Pty Ltd [2022] FCA 148

PRACTICE AND PROCEDURE – Application for an order under rule 30.01 of the Federal Court Rules 2011 (Cth) that certain questions be determined separately – failure to make application before the trial date was fixed on an expedited basis – application for dispensation – principles relevant to exercise of the Court’s discretion – overarching purpose of civil practice and procedure – separate questions not ordered

PRACTICE AND PROCEDURE – Applications for security for costs against a trustee company – form of proposed security – whether proposed undertakings are an adequate form of security – whether a company the subject of an oppression action is entitled to security for costs – applications granted with security in the form of payment into Court or an irrevocable bank guarantee

PRACTICE AND PROCEDURE – Costs – whether a company the subject of an oppression action is entitled to payment of costs thrown away on amendment of pleadings – costs order made

David Rayment and Michael Collins appeared for the First, Second, Third and Fourth Defendants.

Reasons for the decision can be found here.

In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle

CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust

David Rayment appeared for the Plaintiffs.

Reasons for the decision can be found here.

Tukel v Commissioner of Police [2022] NSWCATAD 104

Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ –association with an outlaw motorcycle gang.

Dr Mantziaris represented the Respondent.

Reasons for the decision can be found here.

Tito (Administrator of the Estate of Atkins) v Atkins [2022] FCA 183

SUPERANNUATION – application to review decision of the Superannuation Complaints Tribunal affirming Trustee’s decision to distribute entire death benefit from superannuation fund to deceased member’s wife instead of to deceased’s estate – whether Tribunal made decision according to law – whether no-evidence before Tribunal to sustain finding that deceased member had made a Preferred Nomination – where Tribunal did not overlook computer generated record of Preferred Nomination – where it was not in dispute before Tribunal that a Preferred Nomination had been made – whether Tribunal’s decision was legally unreasonable or irrational or illogical – where Trustee conferred a discretion under Trust Deed Rules to not give effect to deceased member’s intention – where siblings were not financially dependent on deceased member – where wife was a dependant at time of deceased member’s death – where cultural and customary factors may establish a dependency relationship – where it was fair and reasonable for Tribunal to accept Trustee’s decision to distribute entire death benefit to wife – appeal dismissed.

Michael Collins appeared for the Second Respondent.

Reasons for the decision can be found here.

Leach v Burston [2022] FCA 87

PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed.

Renae Kumar appeared for the Applicant.

Reasons for the decision can be found here.

Maruf v Secretary, NSW Ministry of Health [2022] NSWCATAD 2

ANTI-DISCRIMINATION – Discrimination on the ground of age – Application to amend complaint made at final hearing – Whether to exercise power to amend complaint – Whether respondent discriminated against applicant on the ground of age in determining who should be offered employment - Whether respondent discriminated against applicant on the ground of age in denying him access to transfers or promotions – Whether respondent or employee of respondent victimised applicant.

Renae Kumar appeared for the Respondent.

Reasons for the decision can be found here.

Hurley v Security & Technology Services (NT) Pty Ltd [2021] FedCFamC2G 181

INDUSTRIAL LAW – FAIR WORK – whether the applicant wrongfully dismissed – whether the first respondent contravened s 44 of the Fair Work Act 2009 (Cth) – no serious misconduct summary dismissal not justified – contravention of s 44 of the Fair Work Act 2009 (Cth) in failing to give notice required under s 117 of the Fair Work Act 2009 (Cth) – failure to make out serious misconduct within s 123 Fair Work Act 2009 (Cth) – compensation awarded under s 545 of the Fair Work Act 2009 (Cth) – interest under s 547 of the Fair Work Act 2009 (Cth).

Renae Kumar appeared for the Applicant.

Reasons for the decision can be found here.

Yalda v Mshref [2021] NSWSC 624

APPEALS – Damages – Negligence – Vehicle accident – Vicarious liability – Abuse of process – Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1) – Dismissal of statement of claim – Appeal dismissed.

Renae Kumar appeared for the Plaintiff.

Reasons for the decision can be found here.

Smith v Ventia Pty Limited [2021] NSWDC 236

CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — reasonable inquiries – claim for privilege

Renae Kumar appeared for the Plaintiff.

Reasons for the decision can be found here.

Murdoch v Mudgee Dolomite & Lime Pty Limited (in liq) [2022] NSWCA 12

EQUITY - fiduciary obligations - scope of duty - company’s contracts to provide crushing services to a mine were preformed by a director’s and employee’s own companies without disclosure - whether constituted a breach of duty - whether inability to company to preform its obligations a defence - whether acquisition of seperate quarry in Victoria within scope of duty - scope of fiduciary duty identified by company’s actual course of conduct - primary judge correct to hold that performance of company’s exisiting contracts was breach of duty, and acquisition of seperate quarry in Victoria not in breach of duty.

EQUITY - remedies for breach of fiduciary duty - account of profits - contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties - contracts incapable of rescission - whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits - consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson - principles only applied to cases where fiduciary acquires property when acting on behalf of principal - principles inapplicable to contract for the supply of services.

EQUITY - remedies for breach of fiduciary duty - account of profits - discretionary witholding of relief - where principal is less than full informed, but nonetheless “stands by” while fiduciaries continue to derive profits - whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits - profits made after October 2011 held not to be within account.

APPEAL - procedural fairness - complaint that aspects of reasoning at first instance denied procedural fairness - appeal by rehearing - not said that different evidence would have been led - no retrial sought - appellate court empowered and required to make appropriate findings - any denial of procedural fairness incapable of being material - in any event no denial of procedural fairness.

EVIDENCE - coincidence evidence - whether primary judge’s reasoning contravened coincidence rule - evidence tendered without objection - reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW).

John Kelly SC and Dr Christos Mantziaris appeared for the Appellants and Cross Respondents.

Reasons for the decision can be found here.

In the matter of Waratah on Alstonville Pty Ltd (administrators appointed) [2021] FCA 953

CORPORATIONS – application by administrators to extend convening period for second meeting of creditors under ss 439A(6) and 447A of the Corporations Act 2001 (Cth) – where interested person opposed the extension – where interested person entered into construction contracts with company – where interested person claims security under terms of construction contracts on the basis of registered judgments of the Supreme Court of New South Wales and the District Court of New South Wales obtained under the Building and Construction Industry Security of Payment Act 1999 (NSW) following an adjudication process – where adjudication certificates and registered judgments obtained after the appointment of the administrators – where there are extant proceedings commenced before the appointment of the administrators seeking orders setting aside determinations on which the adjudication certificates were based – where there are extant proceedings commenced after the appointment of the administrators seeking to set aside registered judgments – where administrators sought extension to allow administrators to investigate security claims of the interested person, security claims of the trust which provided vendor finance for the property on which construction occurred and security claims of the trust which provided finance for the construction – where director of the company in administration and the trustee of the trust which provided construction finance raised the possibility of proposing a deed of company arrangement but none yet proposed – where finding that creditors are not unfairly prejudiced by an extension – application granted for period shorter than that proposed by administrators.

Michael Collins appeared for the Plaintiffs.

Reasons for the decision can be found here.

Scrivener v Cappello [2021] NSWCA 330

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership.

David Rayment appeared for the First Respondent and Second Respondent.

Reasons for the decision can be found here.

Thompson v Perpetual Trustees Victoria Ltd [2021] NSWSC 622

LIMITATION ACT – lender advances loan 14 years ago – fraudulent broker mis-directs funds to girlfriend – fraud discovered 12 years ago – broker imprisoned – plaintiffs repay lender 9 years ago – equitable claim against lender for unconscionable conduct – s 12GF(2), ASIC Act applies by analogy – whether unjust to apply – not unjust if applied from when plaintiffs aware of fraud.

Michael Collins appeared for the applicant / first defendant.

Reasons for the decision can be found here.

Anjoul v Anjoul [2021] NSWSC 592

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable.

CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed.

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act.

EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff’s contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust.

EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage.

LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant’s consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement.

RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff’s expense — Where the plaintiff’s claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property.

Michael Collins appeared for the defendant.

Reasons for the decision can be found here.

Perpetual Corporate Trust Limited v Xu [2021] FCCA 1178

BANKRUPTCY – interim application – urgent application – direction to registered trustee – where respondent has failed to comply with judgment – where respondent has interfered with sale of property

Michael Collins appeared for the applicant.

Reasons for the decision can be found here.

Snell v Glatis (No 4) [2021] NSWCA 42

PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

Michael Collins appeared for the first and second respondents.

Reasons for the decision can be found here.

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation.

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254.

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation.

Dr Elisabeth Peden SC and Jennifer Mee represented the First Respondent.

Reasons for the decision can be found here.

Pak Brothers Pty Ltd [2021] NSWSC 1247

COSTS -Party/Party -Where no determination on the merits - Whether effective surrender by the Defendant.

Ms. K J Young appeared for the plaintiff.

Reasons for the decision can be found here.

Wang v Cai [2021] NSWSC 1162

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11.

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Preliminary discovery.

CIVIL PROCEDURE — Interrogatories — Application for — Necessity.

CORPORATIONS — Management and administration — Application to inspect books.

EQUITY — Trusts and trustees — Beneficiaries — Access to trust documents — Where claimed by reference to general administration suit — Whether trustee obliged to provide information or an account of trust dealings.

Jennifer Mee represented the second and fifth defendants.

Reasons for this decision can be found here.