AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195

MIGRATION ― appeal from decision of the Federal Circuit Court ― whether primary judge erred in failing to find that Refugee Review Tribunal did not comply with s 425(1) of theMigration Act 1958 (Cth) ― whether Tribunal gave appellant opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review

ADMINISTRATIVE LAW ― illogicality or irrationality ― whether primary judge erred in failing to find that Tribunal’s decision illogical or irrational

ADMINISTRATIVE LAW ― unreasonableness ― whether primary judge gave inadequate consideration to whether Tribunal’s decision legally unreasonable

Stephen Tully appeared for the appellant

East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.

Lisa Doust appeared for the appellants.

Reasons for the decision can be found here.

Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217

PRACTICE AND PROCEDURE – application to adduce new evidence on appeal – whether such evidence was likely to produce a different result – consideration of conduct of the proceedings before the Tribunal – application refused

Christos Mantziaris appeared for the respondents.

Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216

RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case

RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree

RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only

RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions

EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility

Michelle McMahon appeared for the appellants

Lambert Leasing Inc. v QBE Insurance (Australia) Ltd [2016] NSWCA 254

INSURANCE – whether insured obliged to provide insurer with documents to enable insurer to determine whether conditions precedent to cover satisfied – insured claimed legal professional privilege in respect of documents – whether proceedings commenced prematurely

EVIDENCE – further evidence – whether documents in respect of which legal professional privilege was claimed at trial may be tendered on appeal

INSURANCE – double insurance – both policies contain “other insurance” clauses – whether s 45 of the Insurance Contracts Act 1984 (Cth) requires the insured to have “entered into” both contracts of insurance – whether insured has “entered into” both contracts of insurance

INSURANCE – double insurance – whether insurer A entitled to resist providing indemnity on the basis that insured had already been indemnified by insurer B – effect of deed which purported to re-characterise indemnity provided by insurer B as a limited recourse loan

CONTRACT – construction of the word “use” in indemnity clause in sale agreement – whether “use” has particular or special meaning under Virginian law – whether “use” encompassed leasing of aircraft or paying for maintenance pursuant to contractual obligation

Chris Ward SC appeared for the appellants.

Steven Cominos appeared for the second and third respondents.

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.

Tim D. Castle appeared for Westpac Bank.

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.

Tim Castle and Daniel Moujali represented the Respondent.

Reasons for the judgement can be found here.

Lai v Community Association DP 270214 [2016] NSWCATCD 58

APPEAL - Community Association - breach of by-law - withholding of consent  - Community Land Management Act 1989 (NSW).

Michelle McMahon appeared for the appellant.

Great Investments Ltd v Warner [2016] FCAFC 85

CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) 

EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution

EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice

CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act

Inco Ships Pty Ltd v The Australian Institute of Marine and Power Engineers and another [2016] FWCFB 3370

INDUSTRIAL LAW - appeal against an interim decision of Commissioner on application by Inco for the approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services (Agreement) pursuant to s.185 of the Fair Work Act 2009

Lisa Doust appeared for the Maritime Union of Australia.

Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97

CONTRACT – sale of business – vendor entitled to interest on outstanding contract price unless in default – whether vendor in default by allegedly failing to make certain adjustments – CONTRACT – sale of business – vendor obliged to assist purchaser in certain respects – whether breach of contract –whether obligation required unilateral assistance absent request from purchaser – DAMAGES – whether evidence of causation and loss sufficient – PROCEDURE – whether new argument can be raised for first time on appeal.

Lauer v Comer [2016] NSWCATAP 99

HOME BUILDING - Appeal against allowance of quantum meruit – insufficient findings to support allowance.

Michelle McMahon appeared for the appellant.

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle and James Green represented the Applicant.

Reasons for the judgement can be found here.

Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle appeared for the applicant.

National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56

PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP.

Capogreco v Rogerson [2016] NSWCA 61

APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event.
  
COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise.

Robert Angyal SC appeared for the appellant.

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act.
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease.
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave.

Robert Angyal SC appeared for the successful appellant.

Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23

ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons.

LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998.

Michelle McMahon appeared for the successful respondent.

Thompson v Chapman [2016] NSWCATAP 6

HOME BUILDING - Appeal - Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion.

LEGISLATION: Home Building Act 1989 - Civil Procedure Act, 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2002 - Civil and Administrative Tribunal Rules, 2014 - Conveyancing Act 1919.

Michelle McMahon appeared for the successful respondent.

Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192

COSTS - whether, in circumstances where the Full Court has allowed an appeal from a decision of a single judge of the Court not to permit the plaintiffs to amend their Statement of Claim and then has re-exercised the Court’s discretion in respect of that application to amend by permitting amendments some of which were not brought forward before the primary judge, it was appropriate for the Full Court to set aside the order for costs made by the primary judge in respect of the hearing before her and make such order for costs as, in all the circumstances, the Full Court considered to be just – whether, in the events which have happened, the costs of the appellants incurred before the primary judge should be paid or substantially paid by the respondents.

PRACTICE AND PROCEDURE - whether a dissenting judge should express reasons concerning a consequential issue.

David Rayment appeared for a respondent.