Nowra Radiology Pty Ltd v Macintosh (No 2) [2020] FCA 1743

EVIDENCE – whether evidence of Calderbank offer inadmissible under s 53B of the Federal Court of Australia Act 1976 (Cth) – whether offer made by email to the mediator constitutes evidence of anything “said … at a conference conducted by a mediator” – offer held inadmissible.

COSTS – where respondent acceded to part of the relief sought without admission of liability and the balance of the relief was subsequently dismissed by consent save as to costs – whether (different) Calderbank offer can be a foundation for indemnity costs when proceeding terminated without a determination on the merits – whether accession to part of the relief amounted to capitulation – whether it can be said that either side would inevitably have succeeded – whether subsequent dismissal of the proceeding by consent should be treated the same as discontinuance with regard to costs – where both parties have incurred substantial sums in costs – no discernible reason why one party or the other should pay costs – each party to bear its own costs.

Jennifer Mee represented the respondent.

Reasons for the decision can be found here.

Dul v Health Secretary, in respect of Sydney Local Health District [2020] NSWIRComm 1082

UNFAIR DISMISSAL – shift swaps – investigation – whether applicant had verbal approval from Supervisor – whether applicant engaged in a serious form of misconduct for personal gain – application granted.

Renae Kumar represented the Applicant.

Reasons for the decision can be found here.

Al-Huda Pty Limited v Secretary, Department of Education, Skills and Employment [2020] FCA 1613

ADMINISTRATIVE LAW – appeal on a question of law from decision of Administrative Appeals Tribunal to cancel applicant’s status as approved provider of child care services under s 195H(1) of A New Tax System (Family Assistance) Administration Act 1999 (Cth) – whether Tribunal erred in finding for the purposes of s 52(3)(d) and (4)(b)(ii) of the Child Care Subsidy Minister’s Rules 2017 (Cth) that applicant’s non-compliance involved reckless giving of inaccurate, false or misleading information or indicated a deliberate or reckless disregard for obligation to comply with regulatory condition – whether Tribunal erred in failing to explain its understanding of what “reckless” meant when finding applicant reckless – where consideration of whether applicant reckless was mandatory relevant consideration – failure to correctly consider mandatory relevant consideration was a material jurisdictional error – appeal allowed.

Jennifer Mee represented the Applicant.

Reasons for the decision can be found here.

MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418

EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises.

EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period.

Robert Angyal SC represented the Defendant.

Reasons for the decision can be found here.

Wang v Cai [2020] NSWSC 1414

OCCUPATIONS – legal practitioners – solicitors – conflict of interest – litigation about property joint venture – solicitor acting for trustee of unit trust owning half of property – solicitor also acting for unit-holder making resulting trust and misleading & deceptive conduct claims – conflict of interest.

CIVIL PROCEDURE – representation of parties – solicitor acting for parties not in the same interest – leave of court – Uniform Civil Procedure Rules 2005 (NSW) r 7.25.

Jennifer Mee represented the Second and Fourth Respondents.

Reasons for the decision can be found here.

JABBCORP (NSW) PTY LIMITED V STRATHFIELD GOLF CLUB [2020] NSWSC 1317

CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances.

David Rayment represented the Defendant.

Reasons for the decision can be found here.

Woollahra Municipal Council v Ayman Tawfils [2020] NSWIRComm 1063

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction.

Renae Kumar represented the Respondent.

Reasons for the decision can be found here.

INPEX AUSTRALIA PTY LTD v THE AUSTRALIAN WORKERS' UNION [2020] FWCFB 5321

Ian Neil S.C. and Renae Kumar appeared as counsel for INPEX Australia Pty.

The reasons for the decision can be found here.

Alghofaili v SAE Institute Pty Ltd [2020] NSWCATAD 215

EQUAL OPPORTUNITY — leave to proceed — principles applying to grant of leave — race discrimination in education — ethno-religious origin — victimisation.

Renae Kumar represented the Respondent.

The reasons for the decision can be found here.

Walton v Commonwealth Bank of Australia [2020] NSWCA 191

CIVIL PROCEDURE – discontinuance – costs – no consent to discontinue without paying costs – plaintiff sought leave to discontinue with no order as to costs – proceedings lacking practical utility – both defendants impecunious – defendants’ cross-claim abandoned – no right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff – litigation had begun to “feed on itself” – Uniform Civil Procedure Rules 2005 (NSW), r 12.1

COSTS – discontinuance – usual rule that discontinuing party pay defendant’s costs – power to order otherwise – plaintiff sought leave to discontinue with no order as to costs – Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2)

Tim Castle SC appeared for the Respondent.

Reasons for the decision can be found here.

Walton v Commonwealth Bank of Australia [2020] NSWCA 191

CIVIL PROCEDURE — Discontinuance — Costs — No consent to discontinue without paying costs — Plaintiff sought leave to discontinue with no order as to costs — Proceedings lacking practical utility — Both defendants impecunious — Defendants’ cross-claim abandoned — No right by way of defence and set-off to recover any amount exceeding the debt owed to the plaintiff — Litigation had begun to “feed on itself” — Uniform Civil Procedure Rules 2005 (NSW), r 12.1.

COSTS — Discontinuance — Usual rule that discontinuing party pay defendant’s costs — Power to order otherwise — Plaintiff sought leave to discontinue with no order as to costs — Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.19(2).

Tim Castle SC represented the Respondent.

Reasons for the decision can be found here.

BENOY Berry & ANOR v CCL Secure Pty Ltd

Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means.

Dr Christopher Ward SC represented the Appellants.

Reasons for the decision can be found here.

Moriah War Memorial College v Nosti [2020] NSWSC 603 (21 May 2020)

Equity - Commercial List.

Vary order to increase the amount the second defendant may spend on her costs to $200,000.

Kirralee Young represented the second defendant.

Reasons for the decision can be found here.

Energy City Qatar v Hub Street Equipment Pty Ltd [2020] FCA 1116

ARBITRATION – application to enforce a foreign award – where respondent contends that it did not receive proper notice – where respondent contends that arbitral procedure was not in accordance with the contract between the parties – where respondent contends that the arbitral award involved a breach of natural justice – application to enforce award granted.

Tim Castle SC represented the Applicant.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 136

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC appeared for the Second and Third Respondent.

Reasons for the decision can be found here.

Gooley v NSW Rural Assistance Authority [2020] NSWCA 156

CONTRACTS – variation – whether term of credit facility varied – whether variation supported by adequate consideration – where difference in obligations capable of benefiting either party – contract effectively varied – whether bank repudiated contract in maintaining that term varied.

BANKING AND FINANCE – Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB and 12DA – whether in varying term of credit facility bank engaged in misleading or deceptive or unconscionable conduct – whether in making loan bank engaged in unconscionable conduct – no question of principle.

BANKING AND FINANCE – Code of Banking Practice, cll 2.2, 25.1 and 25.2 – whether breach of obligation to exercise care and skill of a diligent and prudent banker – whether breach of obligation to try to help borrower to overcome financial difficulties with a credit facility – no question of principle.

BANKING AND FINANCE – National Credit Code – whether loan “unjust” credit contract within s 76(1) – whether bank failed to respond to hardship notices as required by s 72(4) – whether National Credit Code applied – where the predominant purpose for which credit was provided or was intended to be provided was not a Code purpose – no question of principle.

PRIMARY INDUSTRY – Farm Debt Mediation Act 1994 (NSW) – whether enforcement action taken in contravention of Act – no question of principle.

Tim Castle SC represented the Second and Third Respondents.

Reasons for the decision can be found here.

Moriah War Memorial College Association v Augustine Robert Nosti [2020] NSWSC 942 (23 July 2020)

EQUITY – Fiduciary duties – First defendant was the financial controller of the plaintiff school and dishonestly transferred money from the plaintiff’s bank account and diverted the plaintiff’s tax refunds into various bank accounts in his and the second defendant’s name – Barnes v Addy first limb claim against the second defendant for knowing receipt – Whether the second defendant was a recipient of trust property – Whether the second defendant had sufficient knowledge of the trust and its breach to render her personally liable – Alternative restitutionary claim against the second defendant for the benefit of the misappropriations received by her as a volunteer and retained after notice of the plaintiff’s claim – HELD – First defendant breached his fiduciary duties to the plaintiff and is liable to the plaintiff for damages in the amount he stole – HELD – Not established that the second defendant had sufficient knowledge for the purposes of the Barnes v Addy claim – Second defendant liable for restitutionary claim but not for knowing receipt.

Kirralee Young represented the second defendant.

Reasons for the decision can be found here.

Energy City Qatar v Hub Street Equipment Pty Ltd [2020] FCA 1033

PRACTICE AND PROCEDURE – application by the applicant that the respondent provide security for the applicant’s costs – whether the position of the respondent is purely defensive – where there is no cross-claim nor any order sought by the respondent against the applicant – application dismissed.

Tim Castle represented the Applicant.

Reasons for the decision can be found here.

Holdsworth v Commissioner of Police, New South Wales Police Force [2020] NSWSC 228

STATUTORY INTERPRETATION – declaratory relief – whether firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 constitutes a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – savings and transitional provisions – ordinary meaning manifestly absurd or unreasonable – extrinsic materials – purposive construction of Firearms Act 1996 – HELD: firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 is a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – amended summons dismissed.

Dr Christos Mantziaris represented the defendant.

The reasons for the decision can be found here.

In the Matter of Applied Masters Chemists of Australia Ltd [2020] NSWSC 291

Security interests registered by reference to grantors’ Australian Business Number rather than Australian Company Number – inadvertence – evidence of solvency of grantors – secured creditors not affected by order sought – unsecured creditors affected – whether Guardian Securities condition appropriate – principles at [16]-[20] – grantors include publicly listed company – uncertainty inherent in such a condition unhelpful and unwarranted – condition not imposed.

Tim Castle represented the Plaintiff.

Reasons for the decision can be found here.