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Caason Investments Pty Ltd v Cao [2015] FCAFC 94

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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 728, 729(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 31A, Pt IVA, s 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances.

SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased.

SUCCESSION – family provision and maintenance – principles upon which relief granted for son – deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased.

Dr Chris Ward appeared for the successful plaintiff.

Lauer & Ng v Corner [2015] NSWCATCD 114

Counsel | Michelle McMahon

ADMINISTRATIVE LAW - home building - identity of builder - multiple causes of action claimed -Australian Consumer Law and residential building works - misleading and deceptive conduct - restitution - entitlement of unlicensed builder to retain payments in absence of quantum merit claim - damages.

Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237

DEFAMATION – identification of plaintiff – articles published in major newspaper in print and online – imputations that female teacher had engaged in sexual misconduct with Year 12 boys at the school – plaintiff not named in matter complained of but identifiable by the inclusion of incorrect details – consideration of the principles in Baltinos – whether plaintiff can rely on extrinsic identifying facts acquired by readers after the matter complained of had been published to identify teacher – whether defendant implicitly invited readers to visit school website to ascertain identity of teacher.

DEFAMATION – damages – assessment of damages under sections 34 and 35 of the Defamation Act 2005 (NSW) – principles applicable in the assessment of aggravated damages – whether cross-examination unjustifiable or improper – reliance on post-publication evidence as to reputation – scope of publication.

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7.
Defamation Act 2005 (NSW), ss 18, 34, 35; Pt 3; Pt 4.

Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 (20 August 2015).

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Lambert Leasing Inc. v QBE Insurance Ltd (No 2) [2015] NSWSC 1196

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EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise.

Dr Chris Ward appeared for the plaintiffs.

CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075

EMPLOYMENT - Appeal against decision  [2015] FWC 2384 - workplace drug testing comprising urine and oral fluid random testing - whether either method of testing establishes impairment - whether implementation unjust or unreasonable - error by Commissioner established - permission to appeal granted - appeal upheld - on reconsideration of dispute implementation of preferred method of random drug testing in circumstances of the employer not unjust or unreasonable.

CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075 (19 August 2015)

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Wu v Li [2015] FCAFC 109

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CONTRACTS – appeal from decision of a single judge of the Federal Court of Australia – construction of contract – shareholder agreements – claim by respondent of entitlement under indemnity provisions – meaning of “member loan” in indemnity provisions – whether primary judge erred in quantification of respondent’s entitlement – where respondent alleged misleading and deceptive conduct by appellant – whether primary judge erred in holding that respondent had not proved his loss – where respondent alleged breach of contract by appellant – whether primary judge erred in finding no contravention of shareholder agreements.

EVIDENCE – when statement in an agreement or contractual document will constitute admissible evidence of an admission.

COSTS – where respondent succeeded on one claim but not others – whether the primary judge erred in ordering appellant to pay respondent’s costs.

Dr Chris Ward appeared for the appellants.

Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167

INDUSTRIAL LAW – Underpayments of employees over three legislative regimes, the Workplace Relations Act 1996, the Fair Work Act 2009 (“FW Act”) and the FW Act bridging period from 1 July 2009 to 31 December 2009 – pecuniary penalties – relevant considerations – appropriate approach to quantification of penalty when there is a course of conduct over three legislative regimes – grouping principle.

Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167 (13 August 2015)

Trajkovski v Asiapac Securities Pte Ltd [2015] NSWSC 1432

CIVIL PROCEDURE – validity of credit agreement – application to file amended summons – security for costs – threshold issue – relevant considerations under UCPR 42.21(1A) – whether company incorporated in Singapore should be ordered to give security for costs.

LFDB v SM [2015] FCA 725

PRACTICE AND PROCEDURE – applications to set aside registration of freezing orders made by the High Court of New Zealand – whether enforcement of judgments would be contrary to public policy in Australia – whether freezing orders are “registrable NZ judgments” – whether freezing orders are “final and conclusive” judgments – whether freezing orders are orders that, if contravened, would make the first applicant liable to conviction for an offence – whether orders were made in proceedings in rem the subject matter of which was movable property not situated in New Zealand – Trans-Tasman Proceedings Act 2010 (Cth), s 72.

LFDB v SM [2015] FCA 725 (20 July 2015)

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

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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.

Lambert Leasing Inc. v QBE Insurance Ltd [2015] NSWSC 750

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker[2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment.

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position.

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567.

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable.

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity.

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee.

Liability limited by a scheme approved under Professional Standards Legislation.