Cases

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.

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.

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.

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.

, ,

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

, ,

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.

,

Wondal v Inspector-General in Bankruptcy [2018] FCA 1278

,

From the Federal Court of Australian

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees – whether Tribunal denied the applicant procedural fairness – whether there was no evidence to support findings made by the Tribunal – whether Tribunal failed to consider applicant’s submissions – whether Tribunal’s reasons were inadequate.

David Rayment represented the Respondent.

Reasons for judgment can be found here.

 

, ,

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 (24 July 2018)

, ,

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion.

David Rayment represented the Plaintiffs/Respondents.

Reasons for the decision 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.

, ,

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.

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.

, , ,

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.

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.

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.

Liability limited by a scheme approved under Professional Standards Legislation.