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.
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.
HOME BUILDING - Appeal against allowance of quantum meruit – insufficient findings to support allowance.
Michelle McMahon appeared for the appellant.
PRACTICE & PROCEDURE – order for medical examination to determine plaintiff’s legal capacity in context of defendants' applications for dismissal or striking out of plaintiff’s claims - Births, Deaths and Marriages Act 1995 (NSW), Pt 5A - Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, r 31.46(1).
Michael Seck appeared for the defendants.
CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether “purpose” clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept.
Michael Seck appeared for Mainfreight Distribution Pty Limited.
UNFAIR DISMISSAL – charge of affray – applicant pleads guilty – sentenced to eighteen months imprisonment with nine months nonparole period – on appeal custodial sentence set aside – bond imposed and no conviction recorded – disciplinary process – allegations of serious misconduct – NSW Police Force Code of Conduct and Ethics – NSW Police Force Statement of Values – four allegations of misconduct found proven – decision to terminate applicant's employment – character evidence – seriousness of the misconduct – factors of aggravation and mitigation – considerations of fairness, reasonableness and harshness – fresh and independent review of the decision – cowardly attack by applicant on victim – applicant walked away as victim lay unconscious on roadway.
Michael Seck appeared for the Commissioner of Police.
FAIR WORK - Application for consent to alteration of eligibility rules – Fair Work (Registered Organisations) Act 2009 s.158(1) - Application for alteration of eligibility rulesprivatisation of Home Care Service of NSW – transfer of employees to Australian Unity Home Care Service Pty Ltd – application to continue to cover transferring employees who were previously covered – application granted.
Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union.
LIMITATIONS – defamation proceedings commenced outside limitation period – related proceedings also commenced in Fair Work Commission – burden of proof on plaintiff to show it was not reasonable to commence within time period – burden not discharged – cause of action not maintainable.
DEFAMATION – employee of Commonwealth – alleged misconduct – Intent to Sanction Minute and Statement of Reasons circulated to supervisors and others involved in investigation – defence of qualified privilege made out.
Matthew Richardson appeared for the Commonwealth of Australia.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee.
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general – credit – character - deterrence – appropriate penalty.
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty.
COSTS – prosecution costs.
Michael Seck appeared for the offenders.
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 and James Green represented the Applicant.
Reasons for the judgement can be found here.
APPEAL - Appeal from costs Review Panel
Richard Parsons appeared for the respondent on the appeal.
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.
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.
PROPERTY - Residential Parks Act – termination of residential site agreements, value of dwelling, agreement to buy dwelling.
Michelle McMahon appeared .
Liability limited by a scheme approved under Professional Standards Legislation.