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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Friday, 28 November 2014

Case Summaries

Rinehart v Rinehart [2014] FCA 1241
Federal Court of Australia
Jacobson J
Suppression order - dispute between children of first respondent Georgina Hope Rinehart (GHR) and their mother as to GHR\'s alleged misconduct in administration of trust of which children were beneficiaries - respondents sought interim suppression orders under s37AI Federal Court of Australia Act 1976 (Cth) - respondents sought to suppress contents of originating application and statement of claim and certain associated documents - abuse of process - whether harm would be occasioned in dealings with lenders and investors - scope of arbitration agreements/releases - held: respondents failed to establish credible case that proceeding constituted an abuse of process - counter-parties sophisticated commercial organisations well able to distinguish between allegations and factual findings - substance of allegations significantly in public domain - futile to make suppression order - interim suppression orders revoked - confidential addendum to statement of claim suppressed.
Rinehart (I B C)
[From Benchmark 24 November 2014]
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    McMahon v Permanent Custodians Ltd [2014] FCA 1238
    Federal Court of Australia
    Gleeson J
    Bankruptcy - Federal Circuit Court made orders sequestrating appellants\' estates pursuant to s43 Bankruptcy Act 1966 (Cth) - appellants appealed from dismissal of application for review of Registrar\'s decision - ss43, 52 & 60 Bankruptcy Act 1966 (Cth) - ss3, 4, 5, 6, 7, 8 & 11 Farm Debt Mediation Act 1994 (NSW) (FDM Act) - held: certain grounds of appeal predicated on contention FDM Act applied to question whether to make sequestration orders - however s5(2)(b) FDM Act expressly provided that FDM Act did not apply to a farmer whose property was subject of a bankruptcy petition - primary judge not required to apply FDM Act in making decision under appeal - primary judge entitled to decide appellant\'s right to seek special leave to appeal should not cause him to refuse to make sequestration orders - primary judge\'s erroneous belief that application for stay in High Court was made on a pro bono basis not material error of fact - no appellable error by primary judge - appeal dismissed.
    McMahon (B)
    [From Benchmark 21 November 2014]
     
    Guild Insurance Ltd v Hepburn [2014] NSWCA 400
    Court of Appeal of New South Wales
    Macfarlan, Meagher & Gleeson JJA
    Insurance - negligence - trespass - assault - respondent claimed she was injured as result of wrongful dental advice and treatment by dentist - respondent claimed damages from dentist for trespass, assault and negligence - respondent sought leave under s6 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) to join insurer as second defendant - respondent claimed insurer agreed to insure dentist against professional liability - primary judge granted leave to join insurer - held: Court would not ordinarily grant leave under s6 unless plaintiff demonstrated there was real possibility insured would not be able to satisfy judgment against it and there was arguable case that insurer had issued policy under which insured entitled to indemnity - there was arguable case insurer liable to indemnify dentist under policies in force when dentist\'s allegedly wrongful acts occurred - it was arguable dentist might not be able to meet a judgment obtained by respondent - it was not suggested respondent did  not have arguable claim for damages against dentist - appeal dismissed.
    Guild Insurance Ltd (I)
    [From Benchmark 26 November 2014]
     
    Hart Security Australia Pty Ltd v Boucousis [2014] NSWSC 1654
    Supreme Court of New South Wales
    Darke J
    Equity - directors\' duties - Hartalleged its director breached duties owed to it and that, as a consequence, it lost opportunity to enter contract to provide services to company - Hart further alleged partners of law firm were also liable to pay compensation for loss of opportunity - Hart contended law firm knowingly assisted director\'s breaches of fiduciary duty and partners , Hwere persons involved in the contraventions - held: claims against director and law firm failed - director not engaged in any breach of fiduciary duty amounting to a dishonest and fraudulent design -  no question arose of accessorial liability under second limb of Barnes v Addy - director not in contravention of any of the duties imposed on him by ss181(1), 182(1) & 183(1) Corporations Act 2001 (Cth) - no question arose of liability as person involved in contravention - amended statement of claim dismissed.
    Hart Security Australia Pty Ltd (I B)
    [From Benchmark 25 November 2014]
     
    Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604
    Supreme Court of New South Wales
    McCallum J
    Defamation - pleadings - action arising out of television broadcast - plaintiff sought to  amend pleading to include three of defendant\'s contextual imputations as additional imputations of which he complained - effect of amendment would be to preclude defendants from relying on those three imputations as contextual imputations - s26 Defamation Act 2005 (NSW) - held: there was no property in an imputation -  leaving aside apparent unfairness of depriving defendants of aspect of defence, application to amend would readily be granted in accordance with accepted principle - although plaintiff\'s original imputations and adopted contextual imputations technically met requirement of differing in substance, Court considered that defendants had respectable prospect of persuading jury that even plaintiff\'s original imputations were substantially true - leave to amend granted.
    Hall (I)
    [From Benchmark 25 November 2014]
     
    Rezaiee v Australian Broadcasting Corporation (No 2) [2014] NSWSC 1656
    Supreme Court of New South Wales
    McCallum J
    Discovery defamation action arising out of television broadcast relating to allegations of organised people smuggling - programme included extracts of covertly-obtained audio recordings and video footage of plaintiff - recordings discovered by defendant in proceedings - plaintiff sought leave to provide discovered documents to police for purpose of investigation of possible criminal activity - r21.7(1) Uniform Civil Procedure Rules 2005 (NSW) - held: Court not persuaded plaintiff should have leave to disclose discovered documents - plaintiff\'s concern as to possible commission of offence was to a degree speculative - no basis for concluding or suspecting that what had been published in matter complained of was more than was reasonably necessary in public interest - potential prejudice to defendant was legitimate concern - plaintiff\'s concerns as to invasion of privacy could have been reported to police much earlier and could still be subject of a report regardless of outcome of present application - leave refused to disclose or use defendant\'s discovered documents otherwise than for purposes of conduct of proceedings.
    Rezaiee (I)
    [From Benchmark 26 November 2014]
     
    National Australia Bank Ltd v Smith [2014] NSWSC 1605
    Supreme Court of New South Wales
    Slattery J
    Loans and mortgages - unjust contracts - company borrowed amount from bank to fund its purchase of business - principal and wife guaranteed company\'s loan obligations under various facilities - guarantors mortgaged family home to secure guarantee obligations - company defaulted - guarantors sold their property to reduce liability bank - bank claimed amount from guarantors - guarantors cross-claimed against bank on grounds guarantees were unjust under Contracts Review Act 1980 (NSW) and were occasioned by misleading and deceptive or unconscionable conduct within Australian Securities and Investment Commission Act 2001 (Cth) and Fair Trading Act 1981 (NSW) - held: guarantors able to set aside mortgages and guarantees they signed as part of bank transaction which they entered on grounds including misleading and deceptive conduct by bank through its officer, for breaches of fiduciary duty, for contraventions of ASIC Act and under Contracts Review Act - parties to bring in short minutes to give effect to reasons.
    National Australia Bank Ltd (B)
    [From Benchmark 26 November 2014]
     
    Bartlett v Australia and New Zealand Banking Group Ltd [2014] NSWSC 1662
    Supreme Court of New South Wales
    Adamson J
    Contracts - damages - bank purported to terminate plaintiff\'s employment without notice on basis of serious misconduct - plaintiff sued bank for damages for breach of contract alleging he was not guilty of serious misconduct and that bank not entitled to terminate his employment without notice - held: Court satisfied person who was relevant mind of bank held opinion that plaintiff was responsible for sending doctored email to journalist - common ground that this amounted to serious misconduct within meaning of contract - bank entitled to terminate plaintiff\'s employment without notice - bank not required to establish underlying fact of serious misconduct - even if it were so required bank had established to requisite standard that the plaintiff was responsible for the doctored email to journalist - bank entitled to terminate contract - judgment for bank.
    Bartlett (I B)
    [From Benchmark 27 November 2014]
     
     
     
     
    Executors of the Estate of the late Valerie Marshall Olsen v Second East Holdings Pty Ltd t/as Sotheby\'s Australia [2014] NSWSC 1675
    Supreme Court of New South Wales
    Stevenson J
    Conversion - proceedings concerning painting by Dr John Olsen - plaintiffs were children of Olsen\'s late wife and executors of her estate - defendant was auction house - plaintiffs claimed estate owned painting - plaintiffs sought to bring action for conversion against person in possession of painting and to seek delivery up of painting - plaintiffs sought an injunction restraining auction house from disposing, selling or in any way transferring painting until further order - held: Court not satisfied plaintiffs established prima facie case or serious question such as would warrant grant of an interlocutory injunction - plaintiffs granted a chance to adduce further evidence from Dr Olsen and seek to renew application in the light of evidence - interlocutory injunction refused - application adjourned.
    Executors of the Estate of the late Valerie Marshall Olsen (I B)
    [From Benchmark 27 November 2014]
     
    Margush v Maddeford [2014] SASCFC 129
    Full Court of the Supreme Court of South Australia
    Vanstone, Peek & Parker JJ
    Contract - purchaser signed contract to purchase vendor\'s property - special conditions provided sale subject to purchaser obtaining finance by certain date and that either party could terminate after that certain date, with purchaser only being liable for damages if she had failed to use best endeavours - purchaser unable to obtain finance - vendor terminated contract and sold property for less than contract price - vendor claimed difference in sale price, together with costs associated with second sale - primary judge dismissed claim - primary judge found purchaser had used best endeavours and appeal conduct on that basis - held: special conditions did not constitute condition precedent to operation of contract - providing purchaser used best endeavours, contract at all times remained conditional upon approval for finance being obtained - inability of purchaser to obtain finance did not bring contract to an end - rather, it became voidable at instance of either party - since neither party had validly terminated contract, it remained on foot - special conditions were operative - purchaser free to attempt to obtain finance - appeal dismissed.
    Margush (B)
    [From Benchmark 27 November 2014]
     
    Calvert v Badenach [2014] TASSC 61
    Supreme Court of Tasmania
    Blow CJ
    Solicitors\' duties - legal practitioner took instructions from client for preparation of will - will prepared and executed by testator - testator left whole estate to plaintiff - testator died - testator made no provision for daughter- daughter made application under Testator\'s Family Maintenance Act 1912 (Tas) - judge ordered payment of amount out of estate - plaintiff contended solicitor and firm negligent in failing to advise testator of risk of daughter making claim and failing to advise him of options to arrange affairs so as to avoid claim which could disturb his testamentary wishes - held: Court accepted solicitor owed testator duty to take instructions in relation to possible claim under the Act and that he breached duty - Court not satisfied that had solicitor discharged duty to testator, testator would have taken steps to frustrate possible claim - Court therefore not required to decide whether solicitor owed  plaintiff, as an intended beneficiary, any duty to advise as to risk of claim being made or steps that could be taken to reduce or extinguish testator\'s estate in order to avoid consequences of such claim.
    Calvert (I B)
    [From Benchmark 26 November 2014]
     
    Doyle (WA) Pty Ltd v ING Real Estate Joondalup BV [2014] WASCA 215
    Court of Appeal of Western Australia
    Buss, Murphy & Mazza JJA
    Work injury damages - employer pursuant to s93 Workers\' Compensation and Injury
    Management Act 1981 (WA) sought to recover amount from shopping centre owner in respect of liability to an employee for worker\'s compensation arising from injury suffered by employee at work - primary judge dismissed claim - significance of subsequent alterations - ss5B & 5F Civil Liability Act 2002 (WA) - held: primary judge did not err in finding potential danger was clear to pedestrians or in weighing the elements of s5(4) Occupiers Liability Act 1985 (WA) - appeal dismissed.
    Doyle (WA) Pty Ltd (I)
    [From Benchmark 24 November 2014]

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