PRACTICE AND PROCEDURE – allegations of negligence, assault, battery and false imprisonment – interlocutory application – application for service outside Australia under r 10.43(4) and r 10.44 of the Federal Court Rules 2011 (Cth) – application for substituted service under r 10.24 and r 10.49 of the Rules – application granted
Dr Christopher Ward and Richard Reynolds appeared for the Applicants.
Reasons for the decision can be found here.
Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for recognition and enforcement of arbitral award – Where respondents obtained arbitral award under Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) ("ICSID Convention") – Where respondents sought to enforce award in Australia under s 35(4) of International Arbitration Act 1974 (Cth) – Where s 9 of Foreign States Immunities Act 1985 (Cth) ("Act") provides that a foreign State is immune from jurisdiction of Australian courts – Where appellant asserted foreign State immunity from jurisdiction – Whether appellant waived foreign State immunity from jurisdiction under s 10 of Act by submitting to jurisdiction by agreement – Whether entry into ICSID Convention and agreement to Arts 53, 54 and 55 constituted waiver of immunity from jurisdiction – Whether "recognition", "enforcement" and "execution" in Arts 53, 54 and 55 of ICSID Convention have separate and different meanings – Whether inconsistency arises between English, French and Spanish texts of ICSID Convention.
Dr Christopher Ward SC appeared for the Appellant.
Reasons for the decision can be found here.
BANKRUPTCY – application by the trustee in bankruptcy (trustee) to recover a property or an interest in a property – whether the property, or interest in that property, is held on trust for the bankrupt estate – whether the presumption of advancement applies to the matrimonial home – whether the presumption has been rebutted – where title is placed in the wife’s name only – whether the trustee is entitled to relief under s 139DA of the Bankruptcy Act 1966 (Cth) – whether the transfer of the property was an undervalued transaction or a transaction to defeat creditors and thus void against the trustee – application allowed in part.
Michael Collins appeared for the Respondent.
Reasons for the decision can be found here.
MIGRATION – Immigration Assessment Authority – whether the Authority erred by failing to assess the risk of harm to the applicant in the reasonably foreseeable future.
Richard Reynolds appeared for the Applicant.
Reasons for the decision can be found here.
ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Farming properties held through a company — Company incorporated and initial management shares held by plaintiff’s father and paternal grandfather – Plaintiff claims his father gave encouragement for plaintiff and his wife to move onto one of the properties and subsequently also farm the other property and made promises to leave the shares in the company (or the properties) to the plaintiff upon his father’s death — Father makes various Wills leaving shares to plaintiff but 5 days prior to his death makes a Will leaving his estate to his wife (plaintiff’s mother) — Plaintiff claims father estopped from doing so and shares held on trust for plaintiff — Mother claims plaintiff did not abide by terms of promises by failing to make payments to father and failing to continue farms as “working farms” — Estoppel case made out.
ESTOPPEL — Consideration of alleged conditionality of promises — Whether promises of testamentary inheritance of shares conditional upon plaintiff(s) making payments for benefit of the deceased albeit payments made to corporate entity — Whether promises conditional upon plaintiff(s) continuing to work farms for the remainder of deceased’s life — Effect of deceased’s post promise intervention suggesting alternative use of property for members of plaintiffs’ family.
ESTOPPEL — Estoppel by encouragement — estoppel by acquiescence — Requirements — deceased aware of intended reliance — Life-changing decisions with practically irreversible consequences of a profoundly personal nature beyond the measure of money — Application of principle in Donis v Donis (2017) 19 VR 577; [2007] VSCA 89 — Substantial detrimental reliance established.
TRUSTS — Time from which a constructive trust arises — Time of the conduct which gives rise to the trust occurred is generally when a plaintiff acts in reliance on the promise or expectation such that it later becomes unconscionable for the promisor to resile.
EQUITY — Equitable remedies — Defences to specific performance — Unclean hands — consideration of onus of proof — Consideration of operation of maxim used as a defence against a party seeking equitable relief based on estoppel.
PAYMENT — Consideration of payment obligation being waived or not pressed
LOANS — Onus of proof — Absence of evidence bearing directly on gifting of monies — Whether loan can be inferred from book entries without movement of money — Requirement for underlying agreement — Consideration of Manzi v Smith (1975) 132 CLR 671; [1975] HCA 35 — Whether inference of agreement open — Whether within the scope of authority of accountant to characterise payment as a loan and prepare company financial statements and tax returns accordingly.
GIFTS — Absence of evidence bearing directly on gifting of monies — Assessment of evidence — Gift established — In any event arguably a presumption of advancement arises.
PRACTICE — Pleadings — Pleading of estoppel claims — Test of pleading is not greatest fidelity to facts but materiality of facts — Pleading events or contingencies need not be stated if they are not alleged to affect a plaintiff’s right or title or claim to relief.
CIVIL PROCEDURE — Subpoenas — Privacy and access issues — If parties have concerns regarding privacy but do not have technical capacity to address that they should actively seek the assistance of their legal representatives or other appropriate professionals who can assist them to resolve production issues in a way that fairly enables production of relevant material but otherwise preserves the integrity of matters that are properly the subject of privacy concerns.
EVIDENCE — Photographic evidence — Admissibility — No requirement to prove who took the photograph — Photograph admissible where a witness is able to state the photograph accurately depicts what is shown of the relevant scene, item or facts — Nonetheless distortion of appearance may be ground to make a photograph inadmissible or use unfair.
EVIDENCE — Self-incrimination — Informing witnesses of rights — Obligation under s 132 Evidence Act 1995 (NSW) regarding objections pursuant to s 132 Evidence Act to answering questions.
DECLARATORY RELIEF — Conditioning relief on plaintiffs not being permitted to enforce claim against the estate in respect of a “director’s loan” recorded in company accounts — Further nunc pro tunc declaration sought — Declined on the facts.
TAXES AND DUTIES — NSW company shares — whether dutiable property — Marketable securities not dutiable property — Court otherwise will not pre-empt what duty or tax liability may flow from findings regarding loan and gift transactions.
ANCILLARY RELIEF — Order sought empowering Registrar to execute transfer documents — Court may condition orders with an “alternative execution” provision if circumstances demonstrate probable futility of signing request — Probable futility not demonstrated.
ORDERS — Application for referral of matters to Regulator — Basis on which referral is made discussed — Whether appropriate in the circumstances — Papers not referred.
Dr Christos Mantziaris successfully represented the Plaintiffs.
Reasons for the decision can be found here.
CORPORATIONS – company formed by three Founders to develop and exploit a product – Shareholders’ Deed entered into between the Founders and the associated Founder Shareholders – breakdown of relationship between two of the Founders – whether the relationship between the Founders and their associated Founder Shareholders was governed by an understanding that their respective shareholdings would remain equal and which survived entry into the Shareholders’ Deed – held no such understanding established – whether there was oppression of the second plaintiff because of: (1) conduct alleged to have forced out the first plaintiff as CEO and a director of the company – held no oppression of the second plaintiff; (2) the issue and proposed issue of shares and options after the first plaintiff ceased to be involved in the company – held oppression established for some but not all of the impugned conduct
David Rayment SC and Michael Collins appeared for the First, Second, Third and Fourth Defendants.
Reasons for the decision can be found here.
Court Supplied Summary
Insurance — property insurance — home and contents — where claim by policyholder made following break-in at home — where drafting in policy used the word ‘cover’ throughout — whether cause of action for damages arose at the time of property damage or upon determination of claim — whether claim against policy barred by Limitation Act 1969 (NSW), s 14 — whether ‘cover’ where used in policy interchangeable with ‘indemnify’
Tim Castle SC appeared for the Applicant.
Reasons for the decision can be found here.
CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Whether cy-près or administrative scheme can be ordered — Termination of Australian trust and transfer of Sterling denominated assets to English trust — “Original purposes of a charitable trust” — Charitable Trusts Act 1993 (NSW), s 9(1).
Dr Christos Mantziaris represented the Defendant.
Reasons for the decision can be found here.
APPEAL – leave to appeal – from determination of the appeal panel of NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) s 83 – university collection of personal information from plaintiff and his brother for purpose of pre-visa assessment – grounds of appeal against appeal panel determination unclear – plaintiff submitted collection of information was incompatible with fundamental rights to education and privacy – plaintiff alleged denial of procedural fairness – no error of law made by appeal panel to justify grant of leave – no question warranting grant of leave – plaintiff suffered no detriment from appeal panel’s approach – summons dismissed.
Dr Mantziaris represented the First Defendant.
Reasons for the decision can be found here.
CORPORATIONS - corporate contracting - agency and authority - authority of directors to bind company to contract for the sale of land - contract executed in accordance with s 127(1)(a) of the Corporations Act 2001 (Cth) - where company claims that directors executing contract lacked actual or ostensible authority to bind company - whether plaintiff entitled to make assumptions in s 129 of the Corporations Act 2001 (Cth) - whether company precluded from asserting that assumptions are incorrect - not established that plaintiff actually knew or actually suspected that the company’s constitution had not been compiled with, or that directors were not properly preforming their duties to the company - held that company precluded by s 128(1) of the Corporations Act 2001 (Cth) from asserting non-compliance with its constitution or improper conduct on part of its directors - held that binding contract for sale came into existence
EQUITY - specific performance - contract for the sale of land - discretionary defences to specific performance - where defendant claims lapse of time and protracted negotiations should defeat plaintiff’s claim for specific performance - where defendant claims plaintiff was tricky in procuring contract - where defendant claims specific performance would occasion great hardship upon it - where defendant claims that damages would be an adequate remedy - held that no bar to decree of specific performance had been demonstrated - held appropriate to order specific performance
Robert Angyal SC appeared for the Plaintiff.
Reasons for the decision can be found here.
PRACTICE AND PROCEDURE – Application for an order under rule 30.01 of the Federal Court Rules 2011 (Cth) that certain questions be determined separately – failure to make application before the trial date was fixed on an expedited basis – application for dispensation – principles relevant to exercise of the Court’s discretion – overarching purpose of civil practice and procedure – separate questions not ordered
PRACTICE AND PROCEDURE – Applications for security for costs against a trustee company – form of proposed security – whether proposed undertakings are an adequate form of security – whether a company the subject of an oppression action is entitled to security for costs – applications granted with security in the form of payment into Court or an irrevocable bank guarantee
PRACTICE AND PROCEDURE – Costs – whether a company the subject of an oppression action is entitled to payment of costs thrown away on amendment of pleadings – costs order made
David Rayment and Michael Collins appeared for the First, Second, Third and Fourth Defendants.
Reasons for the decision can be found here.
PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle
CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust
David Rayment appeared for the Plaintiffs.
Reasons for the decision can be found here.
Administrative Law – firearms – firearms prohibition order – whether person ‘not fit, in the public interest’ –association with an outlaw motorcycle gang.
Dr Mantziaris represented the Respondent.
Reasons for the decision can be found here.
SUPERANNUATION – application to review decision of the Superannuation Complaints Tribunal affirming Trustee’s decision to distribute entire death benefit from superannuation fund to deceased member’s wife instead of to deceased’s estate – whether Tribunal made decision according to law – whether no-evidence before Tribunal to sustain finding that deceased member had made a Preferred Nomination – where Tribunal did not overlook computer generated record of Preferred Nomination – where it was not in dispute before Tribunal that a Preferred Nomination had been made – whether Tribunal’s decision was legally unreasonable or irrational or illogical – where Trustee conferred a discretion under Trust Deed Rules to not give effect to deceased member’s intention – where siblings were not financially dependent on deceased member – where wife was a dependant at time of deceased member’s death – where cultural and customary factors may establish a dependency relationship – where it was fair and reasonable for Tribunal to accept Trustee’s decision to distribute entire death benefit to wife – appeal dismissed.
Michael Collins appeared for the Second Respondent.
Reasons for the decision can be found here.
PRACTICE AND PROCEDURE – interlocutory application for strike out and/or summary dismissal of applicant’s Points of Claim (POC) – whether it is reasonably arguable that s 46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not preclude the applicant from pursuing proceedings in this Court – whether it is reasonably arguable that the Court has jurisdiction to determine whether respondent contravened s 94(1) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether applicant’s claims have a reasonable prospect of success – whether it is reasonably arguable that “acts, omissions or practices” (s 46PO(3)(b) of AHRC Act) are limited to events constituting alleged sexual harassment/discrimination – whether appropriate to determine s 46PO(3) of the AHRC Act and s 94(1) of the SD Act issues in interlocutory application – where Court satisfied it is reasonably arguable that Court has jurisdiction to hear complaint with regard to s 94 of the SD Act – where claims relating to s 28G(2) of the SD Act do not disclose arguable cause of action – s 28G(2) of the SD Act claims to be summarily dismissed/struck out, but balance of claims in POC are reasonably arguable – application otherwise dismissed.
Renae Kumar appeared for the Applicant.
Reasons for the decision can be found here.
ANTI-DISCRIMINATION – Discrimination on the ground of age – Application to amend complaint made at final hearing – Whether to exercise power to amend complaint – Whether respondent discriminated against applicant on the ground of age in determining who should be offered employment - Whether respondent discriminated against applicant on the ground of age in denying him access to transfers or promotions – Whether respondent or employee of respondent victimised applicant.
Renae Kumar appeared for the Respondent.
Reasons for the decision can be found here.
INDUSTRIAL LAW – FAIR WORK – whether the applicant wrongfully dismissed – whether the first respondent contravened s 44 of the Fair Work Act 2009 (Cth) – no serious misconduct summary dismissal not justified – contravention of s 44 of the Fair Work Act 2009 (Cth) in failing to give notice required under s 117 of the Fair Work Act 2009 (Cth) – failure to make out serious misconduct within s 123 Fair Work Act 2009 (Cth) – compensation awarded under s 545 of the Fair Work Act 2009 (Cth) – interest under s 547 of the Fair Work Act 2009 (Cth).
Renae Kumar appeared for the Applicant.
Reasons for the decision can be found here.
APPEALS – Damages – Negligence – Vehicle accident – Vicarious liability – Abuse of process – Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1) – Dismissal of statement of claim – Appeal dismissed.
Renae Kumar appeared for the Plaintiff.
Reasons for the decision can be found here.
CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — reasonable inquiries – claim for privilege
Renae Kumar appeared for the Plaintiff.
Reasons for the decision can be found here.
EQUITY - fiduciary obligations - scope of duty - company’s contracts to provide crushing services to a mine were preformed by a director’s and employee’s own companies without disclosure - whether constituted a breach of duty - whether inability to company to preform its obligations a defence - whether acquisition of seperate quarry in Victoria within scope of duty - scope of fiduciary duty identified by company’s actual course of conduct - primary judge correct to hold that performance of company’s exisiting contracts was breach of duty, and acquisition of seperate quarry in Victoria not in breach of duty.
EQUITY - remedies for breach of fiduciary duty - account of profits - contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties - contracts incapable of rescission - whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits - consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson - principles only applied to cases where fiduciary acquires property when acting on behalf of principal - principles inapplicable to contract for the supply of services.
EQUITY - remedies for breach of fiduciary duty - account of profits - discretionary witholding of relief - where principal is less than full informed, but nonetheless “stands by” while fiduciaries continue to derive profits - whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits - profits made after October 2011 held not to be within account.
APPEAL - procedural fairness - complaint that aspects of reasoning at first instance denied procedural fairness - appeal by rehearing - not said that different evidence would have been led - no retrial sought - appellate court empowered and required to make appropriate findings - any denial of procedural fairness incapable of being material - in any event no denial of procedural fairness.
EVIDENCE - coincidence evidence - whether primary judge’s reasoning contravened coincidence rule - evidence tendered without objection - reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW).
John Kelly SC and Dr Christos Mantziaris appeared for the Appellants and Cross Respondents.
Reasons for the decision can be found here.
Liability limited by a scheme approved under Professional Standards Legislation.