REAL PROPERTY – caveats – removal of caveats – caveator claims interest of a purchaser under enforceable agreement – whether caveator would succeed in obtaining interlocutory injunction to protect claimed interest – caveats ordered to be removed – Real Property Act 1900 (NSW) s 74MA.
Mihalopoulos v Westpac Banking Corporation [2015] FWC 2087
EMPLOYMENT – Application for relief from unfair dismissal.
Russo v Westpac Banking Corporation [2015] FCCA 1086
EMPLOYMENT LAW – Application by former employee of respondent seeking payment of ex gratia bonus payments following employee’s retrenchment – whether respondent employer obliged to not act capriciously, arbitrarily or unreasonably when assessing employee’s performance – whether capricious, arbitrary or unreasonable actions of employer can be remedied by Court when employer maintains absolute discretion in respect of such decisions – whether employer breached Australian Consumer Law in relation to its conduct when deciding whether to award retrenched employee ex gratiabonus payment – application allowed.
Russo v Westpac Banking Corporation [2015] FCCA 1086 (12 May 2015)
Lisa Pryor v Mark Latham [2015] NSWSC 529
DEFAMATION – procedure – pleadings – objections to imputations – rulings as to the capacity of the matter complained of to convey the imputations pleaded by the plaintiff – consideration of the ordinary reasonable reader’s understanding of the discourse of gender politics.
Akkari v Sartor [2015] NSWCATAP 79
APPEAL - appeal against orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal - home building - rectification order against weight of the evidence - failure to state reasons - appeal allowed - matter remitted for rehearing.
United Voice v Valspar (WPC) Pty Ltd [2015] FCCA 1139
INDUSTRIAL LAW – Contravention of section 50 of Fair Work Act by an employer – alleged contravention concerns breach of enterprise agreement in respect of compulsory taking annual leave in the form of single days and periods less than a week in duration – alleged contravention also concerns whether settlement procedures arising under the agreement are properly invoked – original decision of this court subject to appeal – application of judgment of the Full Court – matters to be considered.
Essential Energy v Australian Municipal, Administrative, Clerical and Services Union and others [2015] FWCFB 1981
INDUSTRIAL LAW - Appeal - interpretation of the coverage provisions in two enterprise agreements.
CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105
APPEAL – application for leave to appeal – parens patriae jurisdiction of Supreme Court unsuccessfully invoked – earlier interim care order made by Children’s Court – no available statutory appeal from that order –change in circumstances since application for leave filed – final findings made by Children’s Court as to need for protection – no utility in allowing leave to appeal.
CHILD WELFARE – interim care order by Children’s Court – parens patriae jurisdiction of Supreme Court invoked – whether Children’s Court proper forum to determine best interests of children.
Children and Young Persons (Care and Protection) Act 1998(NSW), ss 9(1), 43(1), 45, 71, 72, 247.
Civil Procedure Act 2005 (NSW), ss 56, 71.
Court Suppression & Non-publication Orders Act 2010 (NSW), s 7.
Supreme Court Act 1970 (NSW), ss 69, 101.
CAC v The Secretary, Department of Family and Community Services [2015] NSWCA 105 (24 April 2015).
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 324DA, 324DB, 1292(1), 1292(9).
Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416
JUDICIAL REVIEW – decision of NSW Civil and Administrative Tribunal – Residential Parks Act 1985 –application to terminate residential site agreements – necessity for Tribunal to be satisfied that compensation for cost of relocating dwelling to new location has been determined under s 128 – relocation not possible – Tribunal erred in concluding that order for termination could be made where no relocation was to occur – whether Tribunal approach to s 113(3A)(b) correct – s 113(3A)(b) does not require agreement with resident – Tribunal can assess value of dwelling under s 130A in application under s 113A – discretion to refuse relief where internal appeal available – whether explanation for not pursuing appeal adequate – discretion not exercised – relief granted.
Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416 (17 April 2015)
Duncan v New South Wales; NuCoal Resources Limited v New South Wales; Cascade Coal Pty Limited v New South Wales [2015] HCA 13
CONSTITUTIONAL LAW – Judicial power – Independent Commission Against Corruption produced reports which recommended passing legislation to cancel three exploration licences granted under Mining Act 1992 (NSW) – Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("Amendment Act") inserted Sched 6A into Mining Act 1992 (NSW), cancelling three licences without compensation – Whether Amendment Act involves exercise of judicial power in nature of, or akin to, bill of pains and penalties.
CONSTITUTIONAL LAW – Constitution Act 1902 (NSW) – Legislative competence of New South Wales Parliament – Whether Amendment Act is "law" within meaning of s 5 of Constitution Act 1902 (NSW).
CONSTITUTIONAL LAW – Inconsistency between Commonwealth and State laws – Provision of Amendment Act authorised use or disclosure of information contained in works – Whether provision of Amendment Act inconsistent with Copyright Act 1968 (Cth) and invalid to extent of inconsistency.
Joanne Elizabeth Young v Josephine Aapa Smith [2015] NSWSC 400
REAL PROPERTY – voidable transactions – transfer of property – transfer made pursuant to alleged trust agreement – intent to defraud creditors – future creditors – whether agreement made with intent to defraud creditors – whether transfer made with intent to defraud creditors – requisite state of mind – inferences to be drawn.
TRUSTS - existence of trust - express trust - intention to create trust - impact of subsequent conduct.
TRUSTS - abandonment or abrogation - conduct inconsistent with existence of trust - inferences to be drawn.
Joanne Elizabeth Young v Josephine Aapa Smith [2015] NSWSC 400 (10 April 2015)
Pandeli v Hou [2015] NSWCATAP 58
APPEAL - questions of law - breach of warranty under Home Building Act,1989 (NSW) - whether evidence discharged burden to prove breach of statutory warranties.
CONTRACT - terms of contract between the parties - work to be done - objective assessment of contractual terms - work done by contractor - warranty to undertake work in proper and workmanlike manner.
EVIDENCE - no adequate evidence as to quantum of appellants’ loss - remittal for determination on proper evidence.
Michael John Askew v John Paul Askew [2015] NSWSC 192
EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Disentitling conduct alleged - Value of the estate’s property in dispute - Extent of debts in dispute - Issues in respect of the plaintiff’s and defendant’s circumstances - Question of right to reside or life interest in favour of deceased’s brother - Plaintiff’s right to costs challenged - Order for cost capping sought by defendant - Application by plaintiff to reopen - Provision as a lump sum or percentage of net real estate proceeds.
Lisa Doust appeared for the plaintiff.
Reasons for the decision can be found here.
Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27
DISCRIMINATION - disability in the area of employment - Administrative Decisions Tribunal Act 1997 (NSW) - Anti-Discrimination Act 1977 (NSW) - Civil and Administrative Tribunal Act 2013 (NSW).
Siddique v Director General of the Department of Education and Communities NSW [2015] NSWCATAD 27.
Jewelsnloo Pty Ltd v Sengos [2015] NSWSC 80
PROCEDURE – civil – interlocutory issues – application by plaintiff for leave to reopen its case to admit additional evidence – prejudice to defendants opposing application in circumstances where new evidence will make fundamental changes to basis of plaintiff’s case – evidence that plaintiff unable to compensate defendant for costs of responding to new evidence if plaintiff ordered to do so – no explanation for failure to tender evidence at earlier stage.
Civil Procedure Act 2005 (NSW), Pt 6, Div 1, s 56.
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 20, 243(a).
Fair Trading Act 1987 (NSW), s 42.
Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11
RETAIL LEASE – scope of remitted hearing – issue estoppel – remedies for unconscionable conduct – assessment of damages for lost profits – orders granting partial relief from liability for rent.
Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11 (12 February 2015)
Commissioner of Police v Joseph [2015] NSWCATAP 9
Counsel | Dr Christos Mantziaris
FIREARMS LICENSING – Application for firearms dealers licence – refused by Commissioner – Commissioner’s decision set aside by Tribunal on review – Appeal by Commissioner – Whether Tribunal erred in its approach to consideration of the Commissioner’s application to have considered material regarded by the Commissioner as relevant – Held that Tribunal erred - Whether refusal on the ground of fitness and refusal on the ground of public interest involved the determination of jurisdictional facts – Held not – Whether the Tribunal properly construed the scope of the public interest discretion – held Tribunal erred – Leave granted to extend appeal to merits. Administrative Decisions Review Act 1997, s 63; Firearms Act 1996, s 11(3), s 11(7), s 7.
Commissioner of Police v Joseph [2015] NSWCATAP 9 (10 February 2015)
Coffey Information Pty Limited v Cullen [2015] FCA 28
PRACTICE AND PROCEDURE – application for order for discovery – alleged misuse of confidential information by prospective respondents – whether reasonable belief that prospective applicant may be entitled to relief – whether more than suspicion or assertion – whether insufficient information to determine whether to commence proceedings – whether prospective respondents have relevant material – whether reasonable enquiries undertaken by prospective applicant – exercise of discretion.
Reasons for the decision can be found here.
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.
Tim Castle represented the Plaintiff.
Reasons for the decision can be found here.