Cao v ISPT Pty Ltd [2024] NSWCA 188

CONTRACTS – Construction of a commercial lease – Whether COVID public health restrictions prevented tenant from “opening” the premises for business – Paramount clause to be construed before paramountcy can take effect – Not construed to require illegal activity.

CONTRACTS – Termination – Frustration – Impossibility of performance – Frustration does not apply as COVID public health orders as supervening event was risk for which tenant had assumed responsibility under the lease – Relevant orders did not require radical or fundamental change in what contracted for in any event.

Jennifer Mee appeared for the Respondents.

Reasons for judgment can be found here.

Veale v Coleman [2024] FCAFC 83

BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice issued under s 41(1) of the Bankruptcy Act 1966 (Cth) – foreign currency judgment debt – where bankruptcy notice includes incorrect date for conversion of foreign currency judgment debt to Australian dollars – where bankruptcy notice includes Reserve Bank of Australia rate of currency conversion rounded to two decimal places – where rate of currency conversion is rounded down rather than rounded up – whether there is a defect or irregularity in the bankruptcy notice – whether any defect or irregularity is merely formal – where defect was merely formal – appeal allowed.

Jennifer Mee appeared for the Appellant.

Reasons for judgment can be found here.

The Owners – Strata Plan No 80877 v Lannock Capital 2 Pty Ltd [2023] NSWSC 1401

LAND LAW — Strata title — Termination of strata scheme — Where termination orders sought not unanimous — Where there are existing debts owed by owners corporation to an unsecured lender — Whether registered mortgagees ought be paid first from proceeds of sale if termination orders made — Whether collective sale pursuant to Part 10 of the Strata Schemes Development Act is more appropriate in the circumstances

Jennifer Mee appeared for the First Defendant and Michael Collins appeared for the Sixth Defendant.

Reasons for the decision can be found here.

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – strata title – promise of easement – whether representation sufficiently clear – where representation made at general meeting – where representation did not define the interest in property the representee was expected to receive – where further documentation was required to be executed to give effect to the representation.

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether reliance was that of the owners corporation – Strata Schemes Management Act 1996 (NSW) s 21(2) – Strata Schemes Management Act 2015 (NSW) ss 8, 254.

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – strata title – promise of easement – whether the evidence indicated that the representation was such that the conduct of the lot holders was sufficiently influenced by the representation.

Dr Elisabeth Peden SC and Jennifer Mee represented the First Respondent.

Reasons for the decision can be found here.

Wang v Cai [2021] NSWSC 1162

CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11.

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Preliminary discovery.

CIVIL PROCEDURE — Interrogatories — Application for — Necessity.

CORPORATIONS — Management and administration — Application to inspect books.

EQUITY — Trusts and trustees — Beneficiaries — Access to trust documents — Where claimed by reference to general administration suit — Whether trustee obliged to provide information or an account of trust dealings.

Jennifer Mee represented the second and fifth defendants.

Reasons for this decision can be found here.

Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 62

PRACTICE – stay of execution pending appeal – appropriateness of interlocutory relief – appeal concedely reasonably arguable – whether appellant had established significantly greater prospect of success – balance of convenience – application for stay pending appeal refused

Elisabeth Peden SC and Jennifer Mee represented the Respondent.

Reasons for this decision can be found here.

Trentelman v The Owners - Strata Plan 76700; The Owners - Strata Plan 76700 v Trentelman [2021] NSWSC 155

CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect

ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land

EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused

Elisabeth Peden and Jennifer Mee represented the First Defendant and Plaintiff respectively in proceedings.

Reasons for this decision can be found here.

In the matter of Matrix Global Investment Group Sydney Pty Ltd (ACN 614 718 399) [2021] NSWSC 80

CORPORATIONS – winding up – application by minority shareholders to wind up a company under s 461(1)(k) of the Corporations Act 2001 (Cth) – majority shareholder caused whole of company’s funds to be transferred to accounts controlled by him – non-compliance with subsequent order requiring company’s funds to be paid into court – no issue of principle

Jennifer Mee represented the Applicants.

Reasons for the decision can be found here.

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.

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.

Wang v Polaris Holdings Rosebery Pty Ltd [2020] NSWSC 213

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.

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.

Dunphy v Russell [2018] NSWSC 721

TRUSTS – father contributes funds to the acquisition of a property by his daughter – whether the contribution was an investment or gift – whether the parties intended a trust to be created.

Elisabeth Peden and Jennifer Mee represented the Plaintiff.

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.