In the matter of Waratah on Alstonville Pty Ltd (administrators appointed) [2021] FCA 953

CORPORATIONS – application by administrators to extend convening period for second meeting of creditors under ss 439A(6) and 447A of the Corporations Act 2001 (Cth) – where interested person opposed the extension – where interested person entered into construction contracts with company – where interested person claims security under terms of construction contracts on the basis of registered judgments of the Supreme Court of New South Wales and the District Court of New South Wales obtained under the Building and Construction Industry Security of Payment Act 1999 (NSW) following an adjudication process – where adjudication certificates and registered judgments obtained after the appointment of the administrators – where there are extant proceedings commenced before the appointment of the administrators seeking orders setting aside determinations on which the adjudication certificates were based – where there are extant proceedings commenced after the appointment of the administrators seeking to set aside registered judgments – where administrators sought extension to allow administrators to investigate security claims of the interested person, security claims of the trust which provided vendor finance for the property on which construction occurred and security claims of the trust which provided finance for the construction – where director of the company in administration and the trustee of the trust which provided construction finance raised the possibility of proposing a deed of company arrangement but none yet proposed – where finding that creditors are not unfairly prejudiced by an extension – application granted for period shorter than that proposed by administrators.

Michael Collins appeared for the Plaintiffs.

Reasons for the decision can be found here.

Scrivener v Cappello [2021] NSWCA 330

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership.

David Rayment appeared for the First Respondent and Second Respondent.

Reasons for the decision can be found here.

Thompson v Perpetual Trustees Victoria Ltd [2021] NSWSC 622

LIMITATION ACT – lender advances loan 14 years ago – fraudulent broker mis-directs funds to girlfriend – fraud discovered 12 years ago – broker imprisoned – plaintiffs repay lender 9 years ago – equitable claim against lender for unconscionable conduct – s 12GF(2), ASIC Act applies by analogy – whether unjust to apply – not unjust if applied from when plaintiffs aware of fraud.

Michael Collins appeared for the applicant / first defendant.

Reasons for the decision can be found here.

Anjoul v Anjoul [2021] NSWSC 592

BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — Consequences of failure to obtain contractor licence and insurance — Where the owner-builder defendant pleaded that the Act barred the plaintiff from being entitled to recover any money under a deed in respect of the residential building works because he did not have a contractor licence or insurance as required by the Act — Where the Court found that the Act did not prohibit the plaintiff from enforcing the deed if it was enforceable or from obtaining proper restitution if the deed was not unenforceable.

CONTRACTS — Remedies — Liquidated damages — Penalty — Where the defendant claimed that a term of the deed was a penalty and therefore unenforceable — Where the Court found that the provision was not a penalty because it could not properly be characterised as having the function of inducing performance of another provision of the deed.

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Unjust — Where the plaintiff sought to enforce a deed of acknowledgement of debt — Where there was a material inequality of bargaining power between the plaintiff and defendant — Where the plaintiff exercised unfair pressure or unfair tactics in causing the defendant to enter into the deed — Where the Court found that provisions of the deed were unjust at the time the deed was entered into within the meaning of s 7 of the Act.

EQUITY — Equitable remedies — Restitution — Contract unenforceable — Where the plaintiff claimed in the alternative that the defendant held the property on constructive trust in favour of the plaintiff in proportion to the plaintiff’s contributions to the renovation of the property — Where there was no joint endeavour between the parties in the sense of Muschinski v Dodds — Where the Court found that the plaintiff was not entitled to an equitable interest in the property on the basis of a partial constructive trust.

EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where the defendant claimed that her signature to a deed was the product of duress or undue influence or unconscionability, and that she signed the deed in reliance upon a representation by the plaintiff — Where the Court found that there was no relationship of influence between the plaintiff and defendant to establish undue influence — Where the Court found that the deed should be set aside in equity on the ground that it was procured by the plaintiff taking unconscionable advantage of the defendant’s special disadvantage.

LAND LAW — Caveats — Caveatable interest — Where the defendant claimed that a deed executed by her did not grant a charge over the property in favour of the plaintiff to secure the payment of monies under the deed so that the plaintiff did not have a caveatable interest to support the caveat that he lodged — Where the Court found that the defendant’s consent to the lodgement of the caveat demonstrated an intention that a charge would be created over the property by the lodgement.

RESTITUTION — Nature of restitutionary liability — Unjust enrichment — At the plaintiff’s expense — Where the plaintiff’s claim for the enforcement of a deed of acknowledgment of debt failed — Where the defendant disputed the amount claimed by the plaintiff — Where the defendant was not given an opportunity to verify the amount claimed — Where the plaintiff failed to provide proof at the hearing for the amount claimed — Where the defendant should not in principle enjoy the whole benefit of the renovation works for nothing — Where the Court found that the plaintiff may be entitled to restitution from the defendant for the reasonable costs of the residential building work done and materials supplied, and the value that his participation in the renovation added to the property.

Michael Collins appeared for the defendant.

Reasons for the decision can be found here.

Perpetual Corporate Trust Limited v Xu [2021] FCCA 1178

BANKRUPTCY – interim application – urgent application – direction to registered trustee – where respondent has failed to comply with judgment – where respondent has interfered with sale of property

Michael Collins appeared for the applicant.

Reasons for the decision can be found here.

Snell v Glatis (No 4) [2021] NSWCA 42

PRACTICE – variation of orders by consent – effect of application to delay winding up of companies – need to provide proper basis

Michael Collins appeared for the first and second respondents.

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.

Pak Brothers Pty Ltd [2021] NSWSC 1247

COSTS -Party/Party -Where no determination on the merits - Whether effective surrender by the Defendant.

Ms. K J Young appeared for the plaintiff.

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.

Worth v HDI Global Specialty SE [2021] NSWCA 185

INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire
 
INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis
 
INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach

Tim Castle SC appeared for the Appellant.

Reasons for the decision can be found here.

Alexakis v Wan [2021] NSWCA 172

CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged.

David Rayment and Andrew Smorchevsky represented the Respondents.

Reasons for the decision can be found here.

WORKPAC PTY LTD v ROSSATO [2021] HCA 23

Industrial law (Cth) – Contract of employment – Nature of casual employment – Where first respondent employed by appellant labour-hire company under series of six employment contracts or "assignments" – Where first respondent treated as casual employee – Where first respondent not paid entitlements owed by employers to non-casual employees – Where first respondent claimed to have been other than a casual employee – Where first respondent's work pattern followed established shift structure fixed long in advance by roster – Where employment contract provided that employment was on "assignment-by-assignment basis" – Where employment contract provided that appellant under no obligation to offer first respondent further assignments – Whether there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work – Whether first respondent employed as casual employee.

Brett Walker SC, Ian Neil SC, David Chin SC and Christopher Parkin represented the appellant.

Reasons for the decision can be found here.

Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract.

David Rayment and Andrew Smorchevsky represented the Respondent.

Reasons for the decision can be found here.

Ip v Chiang [2021] NSWSC 822

EQUITY — Unconscionable conduct — Special disability or disadvantage — Other party’s knowledge — Mental incapacity — First defendant entered into transactions and property dealings with deceased in circumstances where deceased lacked capacity — Estate entitled to recover property acquired by first defendant as a constructive trustee.

FAMILY LAW — Marriage — Void marriage — Consent — First defendant purportedly married deceased in circumstances where deceased was incapable of understanding the nature and effect of marriage ceremony.

Ms KJ Young represented the Plaintiff.

Reasons for the decision can be found here.

Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110

ARBITRATION – international arbitration – enforcement of award – where supervisory court appointed the arbitral tribunal – whether composition of the arbitral tribunal was in accordance with the agreement of the parties – comity – whether enforcing court should accept that the appointment of the tribunal by the supervisory court was in accordance with the agreement of the parties

ARBITRATION – international arbitration – enforcement of award – nature of the burden of proving a ground for non-enforcement – whether discretion to enforce award should nevertheless be exercised – nature of the discretion

PRACTICE AND PROCEDURE – settlement – where parties settled “in principle” – where judgment was complete subject to administrative matters prior to settlement – whether Court can hand down judgment notwithstanding settlement “in principle” – Court has a discretion to hand down judgment where it is in the public interest to do so

Tim Castle SC appeared for the Respondent.

Reasons for the decision can be found here.

Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110

ARBITRATION – international arbitration – enforcement of award – where supervisory court appointed the arbitral tribunal – whether composition of the arbitral tribunal was in accordance with the agreement of the parties – comity – whether enforcing court should accept that the appointment of the tribunal by the supervisory court was in accordance with the agreement of the parties

ARBITRATION – international arbitration – enforcement of award – nature of the burden of proving a ground for non-enforcement – whether discretion to enforce award should nevertheless be exercised – nature of the discretion

PRACTICE AND PROCEDURE – settlement – where parties settled “in principle” – where judgment was complete subject to administrative matters prior to settlement – whether Court can hand down judgment notwithstanding settlement “in principle” – Court has a discretion to hand down judgment where it is in the public interest to do so

Tim Castle SC appeared for the Respondent.

Reasons for the decision can be found here.

Unified Security Group (Australia) Pty Ltd v Commissioner of Police (No 2) [2021] NSWCATAD 115

INTERLOCUTORY ORDER – revocation of security licence – application for stay 

Dr Christos Mantziaris represented the Respondent.

Reasons for the 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.

Alexakis v Wan [2021] NSWSC 367

LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month”.

EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW).

David Rayment represented the Defendants in the matter.

Reasons for the decision can be found here.

Savannah Bennie v Sunnyhaven Disability Services Ltd [2021] FWC 1789

UNFAIR DISMISSAL - Whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal - Under Fair Work Act 2009 - Misconduct of employee established, application dismissed.

Michael Whitbread appeared for the Respondent.

Reasons for the decision can be found here.