MASSON AND PARSONS & ORS [2019] HCA 21

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s60H – Whether s60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Constitution, s 109.
Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1).
Status of Children Act 1996 (NSW), Pt 3 Div 1.

Michelle McMahon, Dr James Stellios led by Brett Walker SC represented the first and second respondents.

Reasons for the decisions can be found here.

In the matter of Garfox 86 Pty Limited [2019] NSWSC 442 (18 April 2019)

CORPORATIONS — Dissolution — Reinstatement — Where company twice deregistered administratively for non-payment of fees — Company holds real property — Company solvent — Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of Court’s power — Orders made for re-organisation of shareholding and officeholding to reflect parties’ dealings.

K J Young represented the Plaintiff.

Reasons for the decision can be found here.

Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464

CONTRACTS – written terms – oral terms – construction – whether plaintiff contractually obliged to carry out and complete certain works – whether joint venture agreement or contract caught by Home Building Act 1989 (NSW)

CONTRACTS – interpretation – ambiguity – evidence of surrounding circumstances – evidence of prior negotiations – evidence of subsequent conduct

STATUTORY INTERPRETATION – definitions – Home Building Act 1989 (NSW) – meaning of “residential building work” – contract to do sub-division works including construction of a driveway, retention tank and drainage works – whether preparatory works under contract constituted “residential building works”

Elisabeth Peden and Jennifer Mee represented the First and Second Defendants.

The reasons for the decision can be found here.

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Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 10) [2019] FCA 533

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BANKRUPTCY AND INSOLVENCY – where liquidator seeks order to pay distributions into Court pursuant to r 18.03(1)(b) of the Federal Court Rules 2011 – whether there are competing claims concerning distributions per r 18.01(b)(ii) of the Rules – where liquidator claims no interest in property – interpleader relief granted by way of payment of distributions into Court 

Dr Christos Mantziaris represented the Plaintiff.

Reasons for the decision can be found here.

R & B Directional Drilling Pty Ltd (in liq) v CGU Insurance Limited (No 2) [2019] FCA 458

INSURANCE – commercial general liability insurance – construction subcontract – defective works – distinction between loss of use and physical injury – distinction between “injury” and “physical injury” – no physical injury to tangible property – application dismissed

INSURANCE – exclusions – property in physical or legal control – tunnel was in physical control of applicant

INSURANCE – exclusions – faulty workmanship – insurer will not pay anything in respect of performing, correcting or improving any work undertaken – consequential costs

INSURANCE – exclusions – contractual liability – within ordinary limits of liability

Tim Castle represented the Applicants.

Reasons for the decision can be found here.

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Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2019] FCA 721

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ADMIRALTY – demise charter – construction – nature of demise charter – warranty that vessel would be classed and surveyed to carry 800 passengers – where vessel had not been classed or surveyed at time of entry into charterparty – whether survey for maximum of 450 passengers breach of warranty

CONTRACTS – notice to remedy breach –where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms – whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound

EQUITY – joint venture – fiduciary duty – where party obliged to obtain survey and classification of vessel to carry 800 passengers informs other party that surveyor will only issue for lesser number and parties should do work later to bring vessel to standard for 800 passengers – where consequence is other party would lose guaranteed net profit entitlement under joint venture agreement – whether one party had fiduciary duty to inform other of potential loss of guarantee in advising course of action – whether conflict between interests of joint venturers – whether duty to inform of conflict of interests –whether party to joint venture agreement deemed to know its provisions

Tim Castle with Ms Ermelinda Kovacs represented the Applicant.

Reasons for the decision can be found here.

Rosebridge Nominees Pty Ltd (IN LIQ) and Commissioner of Taxation (Taxation) [2019] AATA 426

TAXATION – GST – time limits on entitlement to claim input tax credits and GST refunds – whether special rules relating to representatives of incapacitated entities provide exemption from time limits – whether reviewable GST decision – objection decision affirmed.

Tim Castle represented the Applicant.

Reasons for the judgement can be found here.

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Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 9) [2019] FCA 287

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BANKRUPTCY AND INSOLVENCY - application for judicial advice as to conduct of liquidation - where liquidator seeks order pursuant to s 488(2) Corporations Act 2001 (Cth) to distribute surplus - whether to grant special leave - leave granted.

Dr Christos Mantziaris represented the Plaintiff.

Reasons for the decision can be found here.

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PHAN V R [2018] NSWCCA 225

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CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

ROBERT ALLAN JACOBS as Receiver and Manager of PLUTON RESOURCES LTD (RECEIVER AND MANAGER APPOINTED) (In Liq) v HUGHES [2018] WASC 414

Corporations - Receivers and managers - Retention of moneys by former receivers and managers - Potential liability under s 433 Corporations Act 2001 (Cth) - Application made by current receiver and manager against former receivers and managers for transfer of retention fund - Proper construction of s 433 - Equitable lien.

Tim Castle and Chris Pearce represented the Plaintiff.

Reasons for the decision can be found here.

ACN 153 364 491 Ltd (in liq) v GP No 1 (in liq), in the matter of GP No 1 (in liq) [2018] FCA 1933

COSTS – application by the defendants for an order that the plaintiff provide security for costs – application brought under s 1335 of the Corporations Act 2001 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth) – where principal order sought by the defendants is that the plaintiff provide security for costs in a fixed amount or some other amount as is determined by the Court – where defendants seek a further order that the proceeding be stayed until the amount sought is paid into Court and an order that if that is not done, the proceeding be dismissed with costs – whether power to order security for costs under s 1335(1) of the Corporations Act is engaged because there is credible evidence which establishes that there “is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence” – consideration of the timing of defendants’ application for security for costs – preliminary consideration of the merits of the plaintiff’s claim –whether plaintiff’s present impecuniosity is due to the defendants’ failure to pay – whether proceeding will be stifled if security is ordered.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Comptroller General of Customs v Zappia [2018] HCA 54

CUSTOMS AND EXCISE – Customs control – Dutiable goods – Possession, custody or control of dutiable goods – Where company held warehouse licence under Customs Act 1901 (Cth) – Where dutiable goods stolen from company's warehouse before goods entered for home consumption – Where respondent employed by company as general manager and warehouse manager – Where s 35A(1) of Customs Act relevantly provided that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control and who fails to keep goods safely shall, on demand by Collector, pay amount equal to customs duty which would have been payable if goods had been entered for home consumption on day of demand – Where respondent served with demand by Collector under s 35A(1) – Where respondent applied to Administrative Appeals Tribunal for review of Collector's demand – Where Tribunal found respondent directed what was to happen to goods on day-to-day basis – Whether respondent was person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control.

Jennifer Mee was one of the counsel representing the Respondent.

Reasons for the decision can be found here.

Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

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Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618

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CORPORATIONS – application to set aside a statutory demand or in the alternative for a permanent injunction – where creditor has refused to assign securities – whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) – whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt – whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction – application allowed.

David Rayment represented the Plaintiff.

Reasons for the decision can be found here.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 8) [2018] FCA 1614 (26 October 2018)

BANKRUPTCY AND INSOLVENCY – application for judicial advice as to conduct of liquidation – whether provider of litigation funding was subrogated to the rights of the liquidator — whether debts owed by company – whether rule in Cherry v Boultbee [1839] Eng R 1099; (1839) 41 ER 171 applicable to distribution – application of the rule in Cherry v Boultbee — costs.

Dr Christos Mantziaris represented the Liquidator appointed by PPB Advisory.

Reasons for the decision can be found here. 

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Ubiparipovic & Ors v Vucicevic & Ors [2018] NSWSC 1583 (19 October 2018)

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EQUITY — charitable trusts – application for approval of the settlement of charitable trust proceedings – Separation of assets of the St George Serbian Orthodox Church and School Cabramatta (SGSOCC) under two cy–près schemes effecting a division of assets between two different church organisations. 

Dr Christos Mantziaris represented the representatives of the SGSOCC (Plaintiffs).

Reasons for the decision can be found here. 

Liability limited by a scheme approved under Professional Standards Legislation.