R & B Directional Drilling Pty Ltd (in liq) v CGU Insurance Limited (No 2) [2019] FCA 458

INSURANCE – commercial general liability insurance – construction subcontract – defective works – distinction between loss of use and physical injury – distinction between “injury” and “physical injury” – no physical injury to tangible property – application dismissed

INSURANCE – exclusions – property in physical or legal control – tunnel was in physical control of applicant

INSURANCE – exclusions – faulty workmanship – insurer will not pay anything in respect of performing, correcting or improving any work undertaken – consequential costs

INSURANCE – exclusions – contractual liability – within ordinary limits of liability

Tim Castle represented the Applicants.

Reasons for the decision can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd [2019] FCA 721

ADMIRALTY – demise charter – construction – nature of demise charter – warranty that vessel would be classed and surveyed to carry 800 passengers – where vessel had not been classed or surveyed at time of entry into charterparty – whether survey for maximum of 450 passengers breach of warranty

CONTRACTS – notice to remedy breach –where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms – whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound

EQUITY – joint venture – fiduciary duty – where party obliged to obtain survey and classification of vessel to carry 800 passengers informs other party that surveyor will only issue for lesser number and parties should do work later to bring vessel to standard for 800 passengers – where consequence is other party would lose guaranteed net profit entitlement under joint venture agreement – whether one party had fiduciary duty to inform other of potential loss of guarantee in advising course of action – whether conflict between interests of joint venturers – whether duty to inform of conflict of interests –whether party to joint venture agreement deemed to know its provisions

Tim Castle with Ms Ermelinda Kovacs represented the Applicant.

Reasons for the decision can be found here.

Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67

Home Building – Date of Completion of residential building work – major defect – proof of elements – limitation periods.

Michelle McMahon represented the Appellant.

Reasons for the decision can be found here.

Rosebridge Nominees Pty Ltd (IN LIQ) and Commissioner of Taxation (Taxation) [2019] AATA 426

TAXATION – GST – time limits on entitlement to claim input tax credits and GST refunds – whether special rules relating to representatives of incapacitated entities provide exemption from time limits – whether reviewable GST decision – objection decision affirmed.

Tim Castle represented the Applicant.

Reasons for the judgement can be found here.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 9) [2019] FCA 287

BANKRUPTCY AND INSOLVENCY - application for judicial advice as to conduct of liquidation - where liquidator seeks order pursuant to s 488(2) Corporations Act 2001 (Cth) to distribute surplus - whether to grant special leave - leave granted.

Dr Christos Mantziaris represented the Plaintiff.

Reasons for the decision can be found here.

PHAN V R [2018] NSWCCA 225

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

ROBERT ALLAN JACOBS as Receiver and Manager of PLUTON RESOURCES LTD (RECEIVER AND MANAGER APPOINTED) (In Liq) v HUGHES [2018] WASC 414

Corporations - Receivers and managers - Retention of moneys by former receivers and managers - Potential liability under s 433 Corporations Act 2001 (Cth) - Application made by current receiver and manager against former receivers and managers for transfer of retention fund - Proper construction of s 433 - Equitable lien.

Tim Castle and Chris Pearce represented the Plaintiff.

Reasons for the decision can be found here.

ACN 153 364 491 Ltd (in liq) v GP No 1 (in liq), in the matter of GP No 1 (in liq) [2018] FCA 1933

COSTS – application by the defendants for an order that the plaintiff provide security for costs – application brought under s 1335 of the Corporations Act 2001 (Cth) and r 19.01 of the Federal Court Rules 2011 (Cth) – where principal order sought by the defendants is that the plaintiff provide security for costs in a fixed amount or some other amount as is determined by the Court – where defendants seek a further order that the proceeding be stayed until the amount sought is paid into Court and an order that if that is not done, the proceeding be dismissed with costs – whether power to order security for costs under s 1335(1) of the Corporations Act is engaged because there is credible evidence which establishes that there “is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence” – consideration of the timing of defendants’ application for security for costs – preliminary consideration of the merits of the plaintiff’s claim –whether plaintiff’s present impecuniosity is due to the defendants’ failure to pay – whether proceeding will be stifled if security is ordered.

Tim Castle represented the Plaintiff.

Reasons for the judgement 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.

Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

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.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 8) [2018] FCA 1614 (26 October 2018)

BANKRUPTCY AND INSOLVENCY – application for judicial advice as to conduct of liquidation – whether provider of litigation funding was subrogated to the rights of the liquidator — whether debts owed by company – whether rule in Cherry v Boultbee [1839] Eng R 1099; (1839) 41 ER 171 applicable to distribution – application of the rule in Cherry v Boultbee — costs.

Dr Christos Mantziaris represented the Liquidator appointed by PPB Advisory.

Reasons for the decision can be found here. 

Ubiparipovic & Ors v Vucicevic & Ors [2018] NSWSC 1583 (19 October 2018)

EQUITY — charitable trusts – application for approval of the settlement of charitable trust proceedings – Separation of assets of the St George Serbian Orthodox Church and School Cabramatta (SGSOCC) under two cy–près schemes effecting a division of assets between two different church organisations. 

Dr Christos Mantziaris represented the representatives of the SGSOCC (Plaintiffs).

Reasons for the decision can be found here. 

Devine v Liu [2018] NSWSC 1453

PRACTICE AND PROCEDURE – applications – pleadings and particulars – application to amend statement of claim – strike out and summary judgment application – statement of claim pleaded claim concerning a director’s duty to prevent insolvent trading by company under Corporations Act 2001 (Cth), s 588G – where statement of claim did not plead how and when company incurred relevant debts – where statement of claim did not particularise the nature of reliance on the presumption of insolvency under Corporations Act 2001 (Cth), s 588E(4).

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – litigation funding – solicitors for the liquidator conducting proceedings on a “no win, no fee” basis.

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – liquidator and company as co-plaintiffs – whether the company is a necessary party to voidable transaction and insolvent trading claims under the Corporations Act 2001 (Cth) – discussion of whether the joinder of a liquidator as co-plaintiff prevents the Court from ordering security even if co-plaintiff company is insolvent.

PRACTICE AND PROCEDURE – costs – costs payable forthwith – difficulty in assessing costs in circumstances where statement of claim struck out but with leave for the plaintiff to re-plead claim.

Tim Castle and Sandrine Alexandre-Hughes represented the Defendant.

Reasons for the judgement can be found here.

Vivaldi v Dental Board of Australia [2018] NSWCATOD 159 (20 September 2018)

From Civil and Administrative Tribunal New South Wales.

COSTS – exercise of the discretion to award costs where appellant withdraws appeal.

KJ Young represented the Respondent.

Reasons for Decision can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd (No 3) [2018] FCA 1411

ADMIRALTY – joint venture to operate hospitality business aboard vessel – agreement to charter and license vessel.

PRACTICE AND PROCEDURE – further interlocutory application for an order to appoint a receiver and manager to take control of a vessel and business operated on-board –balance of convenience – where the relationships between the parties have broken down – application granted.

PRACTICE AND PROCEDURE – interlocutory application for payment of profits made pursuant to a joint venture agreement – counter interlocutory application for shared costs pursuant to a joint venture agreement – where there are competing legal arguments concerning construction of the joint venture agreement and evidentiary questions that are to be determined at final hearing – interlocutory applications refused.

PRACTICE AND PROCEDURE – application for security for costs – where it is conceded that security for future costs is payable but the plaintiffs contest payment of security for past costs and contend that funds held in trust pursuant to Court order should stand as security for costs of the proceeding – application for security for past costs refused – plaintiffs ordered to provide security for future costs, which are not to be payable from the funds held in trust.

Tim Castle represented the Plaintiff.

Reasons for the judgement 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.

Rekrut v Champion Homes Sales Pty Ltd [2018] NSWCATAP 162

From the Civil and Administrative Tribunal New South Wales:

APPEAL – costs – costs order made by Tribunal after Appeal Panel has allowed appeal in part – whether costs order should be set aside

Michelle McMahon represented the Appellants.

Reasons for Decision can be found here

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5) [2018] NSWSC 1935

COSTS – application for costs order entered be varied – application for gross sum costs order – where defendant rejected the plaintiff’s offer of payment and sought assessment of costs – where plaintiff previously sought assessment of costs and opposed any lump sum quantification - whether plaintiff’s position should be characterised as a capitulation.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.