INSURANCE – house fire – claim for indemnity – whether insured responsible for fire – circumstantial case – good faith in taking of defence alleging lack of reasonable dispatch in rectifying property.
Tim Castle and Peter Mann represented the Plaintiff.
Reasons for the decision can be found here.
LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiff entered into contract to purchase a stratum lot in an unregistered plan of subdivision – draft plan annexed to contract showed areas at various levels – whether areas should be understood as areas of the lot at those levels or floor areas at those levels – held that areas should be understood as areas of the lot – no substantial discrepancy between the subject matter of the sale and what was able to be conveyed – plaintiff had no right to rescind.
LAND LAW – contract for sale of land – deposit – vendor entitled to forfeit deposit upon termination for purchaser’s failure to complete – statutory return of deposit – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – no grounds for order for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW).
MISLEADING AND DECEPTIVE CONDUCT – contract for sale of stratum lot in unregistered plan of subdivision – draft plan annexed to contract showed areas of various levels – whether vendor made misrepresentation as to floor space in building once constructed – no misrepresentation made by vendor – vendor did not engage in conduct that was misleading or deceptive or likely to mislead or deceive within the meaning of s 18 of Australian Consumer Law – no grounds for order for return of deposit.
Jennifer Mee represented the defendant/cross claimant.
Reasons for the decision can be found here.
Cy–près scheme ordered by Attorney General (NSW). Non-publication order (NSWSC, Lindsay J, 18 February 2020).
Trustee application to save charitable gift to Foundation 41, a defunct institution (a case of supervening impossibility). Cy-près scheme ordered (NSWSC, Slattery J, 17 February 2020).
FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father ’s costs of the appeal in a fixed sum.
Michelle McMahon represented the defendant.
The reasons for the decision can be found here.
From the NSW Court of Appeal:
CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations.
CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator.
David Rayment represented the appellants.
The reasons for the decision can be found here.
More information can be found here.
COSTS – costs of and incidental to a notice of motion filed by the plaintiff – where settlement reached between the plaintiff and the defendant and the notice of motion was not dealt with on its merits – where term of the settlement was that the plaintiff was to bear the burden of any order for costs made in favour of the respondent in relation to the plaintiff’s notice of motion – held appropriate to make a gross sum costs order.
Madeleine Bridgett represented the defendant.
The reasons for the decision can be found here.
CIVIL PROCEDURE - Notice of Motion - Application by law firm seeking declaratory relief and claiming an equitable lien over a settlement sum that had been paid in court - where the applicant was the law firm acting for the plaintiff - where the applicant’s legal fees remain outstanding - where motion dealt with after determination of the substantive issue in the proceedings - whether the applicant had standing - whether an equitable lien had arisen in present case - whether the applicant was instrumental in obtaining the settlement result - held there was a sufficient causal link between the applicant’s efforts and the settlement result - equitable lien established.
Kirralee Young represented the Applicant on motion.
Reasons for the decision can be found here.
Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court.
Dr. James Stellios represented the defendant.
The reasons for the decision can be found here.
PRACTICE AND PROCEDURE - Application to vary orders to permit sale of property to fund legal representation in proceedings - whether party may be heard on application where prima facie in contempt - whether “rule” discretionary - principles of Young V Jackman; Hadkinson v Hadkinson - Civil Procedure act 2005 (NSW), ss 55-64.
Kirralee Young represented the Plaintiff.
Reasons for the decision can be found here.
COSTS — party/party – general rule that costs follow the event – application of the rule and discretion – each party enjoys a measure of success – no issue of principle.
Kirralee Young represented the plaintiff.
Reasons for the decision can be found here.
EVIDENCE — records of prior communications concerning FOS complaint – admissibility – hearsay – prior consistent statement.
EVIDENCE — Opinion evidence — Expert opinion – economist’s opinion about conduct of bank towards customers – admissibility – Makita principles.
CONTRACTS – Performance – Variation of Terms – variation of loan repayment terms – need for consideration – assumption of risk that variation may benefit either party.
CONTRACTS — Misleading conduct under statute — variation of loan terms purportedly without customer’s knowledge and approval – misleading or deceptive conduct - unconscionable conduct - estoppel.
BANKING AND FINANCE — Banks – Statutory unconscionability – two year commercial loan – “asset lending” – breach of term of contract incorporating Banking Code of Practice.
BANKING AND FINANCE — Banks – breach of term of contract incorporating Banking Code of Practice cll 25.2 and 2.2 – requirement under term for co-operation between the customer and Bank – no breach by fixing final date for repayment after period of forbearance.
BANKING AND FINANCE — Banks — Bank accounts — Interest – entitlement to charge interest at contractual rates following expiry of loan – entitlement to interest on amounts paid and set aside for costs – repudiation – termination.
Tim Castle represented the Defendant.
Reasons for the judgement can be found here.
APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability
Tim Castle and David Edney represented the Appellant.
Reasons for the decision can be found here.
CIVIL PROCEDURE— Summary disposal — Dismissal of proceedings — Abuse of process – application for dismissal of proceedings or the striking out of the statement of claim or orders in respect of costs incurred in earlier proceedings – whether an abuse of process to bring fresh proceedings in circumstances where the first proceedings were dismissed for their failure to provide security for costs.
Tim Castle represented the Defendants.
Reasons for the decision can be found here.
MIGRATION – decision of Minister, personally exercising the power under s 501BA of the Migration Act 1958 (Cth), to set aside revocation decision and to cancel the appellant’s spouse visa – whether Minister’s finding that there was an ongoing likelihood the appellant will re-offend was legally unreasonable – whether the Minister formed the view that he was precluded from inviting the appellant to make submissions or provide further material and thereby misunderstood the operation of s 501BA – Ibrahim v Minister for Home Affairs [2019] FCAFC 89 applied.
PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether leave should be granted to rely on an amended notice of appeal.
PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether Full Court should exercise its discretion to receive further evidence.
Theresa Baw and Renae Kumar represented the Appellant.
Reasons for the decision can be found here.
CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants’ impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs.
Tim Castle represented the Plaintiff.
Reasons for the decision can be found here.
ADMINISTRATIVE LAW – appeal from Civil and Administrative Tribunal – whether decision made by validly constituted tribunal – four-member tribunal was constituted for the purposes of the hearing – whether principal member could separately and simultaneously constitute herself as the tribunal to decide legal questions – single member of a multi-person tribunal which has already been constituted not authorised to constitute himself or herself as the tribunal on unstated informal basis or to make a decision unilaterally without recourse to the balance of the tribunal – decision void.
COSTS – whether successful plaintiff ought pay defendant’s costs of proceedings – defendant invited to file submitting appearance – defendant not neutral contradictor – costs follow the event.
COSTS – suitors’ fund – application for suitors’ fund certificate – appropriate to grant certificate where defendant did not contribute to error made by tribunal.
Kirralee Young represented the plaintiff.
The reasons for the decision can be found here.
APPEAL – interlocutory decision to extend time – whether leave should be granted to appeal – whether discretion miscarried.
Dr Christos Mantziaris represented the applicant.
The reasons for the decision can be found here.
Liability limited by a scheme approved under Professional Standards Legislation.