QBE Underwriting Ltd as Managing Agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd (2018) 97 NSWLR 459

INSURANCE— Liability insurance — Exclusions — Where insured entered agreement with third party containing warranties and agreement to indemnify — Whether insured would have been liable in absence of such agreement.

INSURANCE —  Insurance Contracts Act 1984 (Cth) — Duty of disclosure — Scope and duration — Where insurer disclosed to insured letter warning of possible obligations to indemnify third parties —  Insurance Contracts Act 1984  (Cth), s 21.

CONTRACTS — Construction — Interpretation — “‘For’” — “‘In respect of’” — Whether contract of insurance extended to indemnity for adverse costs order.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Vanguard Financial Planners Pty Ltd & Anor v Ale & Ors [2018] NSWSC 314

CONTRACT – construction – whether the Court can have regard to prior negotiations which indicate parties’ subjective intention in construing contract – implied terms – whether term is necessary for business efficacy or so obvious that it goes without saying – whether term is to be implied into the contract.

CONTRACT – repudiation – whether party has indicated a refusal to perform the contract – whether acceptance of repudiation was communicated to the promisor.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181, 182 and 183 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty to avoid improper use of information – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether conduct of Defendants amounted to breach of statutory duties.

EQUITY – general principles – fiduciary obligations – where business venture has been consensually terminated – whether parties to venture owe fiduciary duties to one another – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether director of company breached no conflict and no profit duties – whether director of company breached best interests and proper purposes duties – whether director of company breached equitable duty of confidentiality.

TRADE PRACTICES – application of Restraints of Trade Act 1976 (NSW) s 4 – where contractual restraint of trade in broad terms – whether restraint of trade is void for breach of public policy.

TRADE PRACTICES – misleading or deceptive conduct claim under s 18 of the Australian Consumer Law – whether representations made are misleading or deceptive – whether representations among directors of a company are made in trade or commerce.

Jennifer Mee was one of the counsel representing the Defendants.

Reasons for the decision can be found here.

Stojic v Stojic [2018] NSWCA 28

In the New South Wales Court of Appeal:

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

David Smallbone appeared with David Rayment for the Appellant.

Global Constructions Australia Pty Ltd (in liq) v AIG Australia Limited [2018] FCA 98

INSURANCE — construction of policy — claim for direct financial loss — theft or fraudulent acts by a shareholder — limit of liability — set-off of shareholder's loan account against direct financial loss — set-off to be applied prior to applying limit of liability.

Tim Castle represented the Applicant.

Reasons for the judgement can be found here.

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

From the Federal Court of Australia:

MIGRATION – application for judicial review of a decision of the Minister to refuse a visa under s 501(1) of the Migration Act 1958 (Cth) – whether Minister misconstrued or misapplied s 501(6)(d)(i) of the Act – whether Minister required to give consideration to a psychologist’s report

Dr Stephen Tully appeared pro bono for the applicant.

Wickham & Arnett [2018] FCCA 80

From the Federal Circuit Court of Australia:

FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Michelle McMahon appeared for the Independent Children's Lawyer.

Sydney Tools Pty Ltd v Robert Bosch (Australia) Pty Ltd [2017] NSWSC 1709

From the Supreme Court of New South Wales:

CONTRACTS - existence of a contract - “postal rule” - whether Trading Agreement contained obligation to supply absent acceptance of an order - - HELD: no executed contract - no obligation to supply - PRACTICE AND PROCEDURE - Practice Notice SC Eq 3 para 50 - “stop-watch” method of trial

David Rayment appeared for the Defendant.

Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190

CONTRACT — implied terms — implication of duty or obligation of good faith and reasonableness — franchise agreement — where franchisor had discretionary power to set maximum prices for products — where parties accepted that power subject to duty of good faith — scope of duty of good faith and reasonableness — whether franchisor was obliged to act reasonably in an objective sense

NEGLIGENCE — franchise agreement — whether franchisor owed duty of care to franchisees in exercising power to set maximum prices for products — where franchisee alleged that franchisor owed franchisees a duty to exercise power so that franchisees could make, maintain or increase profits

CONSUMER LAW— unconscionable conduct — franchise agreement — where franchisee alleged that franchisor had engaged in unconscionable conduct in setting maximum prices for products

Tim Castle, James Arnott and Simona Gory represented the Appellant.

Reasons for the judgement can be found here.

NSW Land & Housing Corporation v Martin [2017] NSWCATCD

From the NSW Civil & Administrative Tribunal:

SOCIAL HOUSING: Application for termination of residential tenancy agreement – Whether proceedings should be stayed pending finalisation of criminal proceedings

Michelle McMahon appeared for the respondent.

The full judgement is available here.

Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

From the Supreme Court of New South Wales:

BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach

Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.

LFDB v SM [2017] FCAFC 178

From the Full Federal Court of Australia:

PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia

Dr Christopher Ward SC and Dr Stephen Tully successfully appeared for the respondent.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2017] FCA 1124

ADMIRALTY – joint venture to operate hospitality business aboard vessel – agreement to charter and license vessel

PRACTICE AND PROCEDURE – interlocutory application for order to appoint receiver and manager to take control of vessel and business operated on-board – whether there is a serious question to be tried – balance of convenience – whether damages are an adequate remedy – application dismissed – undertakings to Court noted

Tim Castle SC appeared for the Plaintiffs.

Reasons for the decision can be found here.

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187

From the NSW Civil & Administrative Tribunal:

APPEAL – whether leave to appeal should be granted – whether Tribunal below failed to give adequate reasons – whether Tribunal below failed to consider claims – whether no evidence to support findings made below
  
EXTENSION OF TIME – whether extension of time needed – application of Civil and Administrative Rules 2014 (NSW) rr 6 and 13 and Interpretation Act 1987 (NSW) s 76 – whether extension of time should be granted

Michelle McMahon appeared for Adam Rekrut and Sandra Scott.

Allen & Anderson & Byng v Tricare (Hastings) Ltd & Tucker v Tricare (Hastings) Ltd [2017] NSWCAT

From the NSW Civil & Administrative Tribunal - Consumer and Commercial Division:

Compensation

The full decision is available here.

Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 28

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth).

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence.

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth).

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession.

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence.

David Rayment represented the Respondent.

Reasons for the decision can be found here.

Rizeq v Western Australia [2017] HCA 23

From the High Court of Australia:

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Dr James Stellios assisted Matthew Howard SC in representing the appellant.

Australian Building and Construction Commissioner v Parker [2017] FCA 564

From the Federal Court of Australia:

INDUSTRIAL LAW – coercion – taking of action against another person – intent to coerce – need for an intent to negate choice – need for a high degree of compulsion

INDUSTRIAL LAW – intention – onus to establish affirmatively that action was not actuated by the reason alleged

INDUSTRIAL LAW – the taking of industrial action 

INDUSTRIAL LAW – breach of enterprise agreement

INDUSTRIAL LAW – accessorial liability – knowledge of essential matters which make up offence

INDUSTRIAL LAW – breach of civil penalty provisions

PRACTICE AND PROCEDURE – stay of proceeding pending resolution of criminal proceedings – stay refused – alleged contraventions “not substantially the same” 

PRACTICE AND PROCEDURE – Briginshaw standard – need to consider gravity of matters alleged 

PRACTICE AND PROCEDURE – withdrawal of an admission in defence – leave granted

Matthew White SC appeared with Michael Rennie for the Applicant.

Estate MPS, deceased [2017] NSWSC 482

From the New South Wales Supreme Court:

SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy
 
SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward
 
SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship
 
SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders

PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders

Kim Morrissey appeared with Madeleine Bridgett for the Plaintiff.

Bates & Arthur and Anor [2017] FamCAFC 73 (26 April 2017)

From the Family Court of Australia:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

Dr Christopher Ward SC appeared with Madeleine Bridgett for the First Respondent.

Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329

From the Federal Court of Australia:

PRACTICE AND PROCEDURE – application for a stay pending application for special leave to appeal to High Court – application dismissed, with costs

David Rayment appeared for the Commonwealth.