Benchmark Newsletter 09 July 2009 - A Daily Bulletin listing by hjkuiw354

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									Thursday 9 July 2009                                                                      Click here to visit our website




                       Insurance Banking & Construction
       A Daily Bulletin listing Decisions of Superior
                    Courts of Australia

     Executive Summary (1 minute read)
     Pape v Commissioner of Taxation - Tax Bonus for Working Australians Act (No 2) 2009 (Cth) –
     held that it was a valid law of the Commonwealth (I, B, C)

     Diakyne Pty Limited v Ralph – s1317(H) Corporations Act 2001 (Cth) – bonuses - directors’
     duties – civil penalty provisions – compensation for damage (I, B)

     Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of
     the late Jocelyn Estephan & Ors) - Personal injuries – costs – apportionment (I)

     Paice v Hill - Motor Accidents Compensation Act 1999 (NSW) - interpretation – Motor
     Accidents Authority of NSW, Motor Accidents Assessment Service, Claims Assessment
     Guidelines (March 2006) - objects of the legislation - effect of delegated legislation on
     interpretation of a statute (I)

     Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments
     Ltd) v Belramoul & Ors - Mortgages - mortgagee's power of sale - no breach of duty by
     mortgagee (I, B, C)

     Robson v Daley - Costs where proceedings settled (I, B, C)

     Penola Trading Co Pty Ltd v Sunny Springs Pty Ltd - Contracts - sale of business – hotel
     with gaming facilities – repudiation – deposit (B, C)

     Cameron v McMahon & Anor - Professional negligence – accountant - breach of fiduciary
     duty - breach of s9 Fair Trading Act 1999 (Vic) & s52 Trade Practices Act 1974 (Cth) - plaintiff
     awarded $222,609.32 (I, B, C)
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   Rod Investments (Vic) Pty Ltd v Abeyratne & Ors (No 2) - Proportional liability - trial of
   twelve preliminary questions – whether claims apportionable within meaning of Part 7.10
   Div 2(A) Corporations Act 2001 (Cth); Part 2 Div 2 Sub Div G(A) Australian Securities &
   Investments Commission Act 2001 (Cth); Part 6(A) Trade Practices Act 1974 (Cth); Part 4(AA)
   Wrongs Act 1958 (Vic) (I, B, C)

   Green v President of the Industrial Court of Qld & Q-COMP – s36(A) Workers’
   Compensation & Rehabilitation Act 2003 (Qld) – date of injury – lung cancer (I)
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    Summaries with links (5 minute read)
   Thursday 9 July 2009
   Pape v Commissioner of Taxation [2009] HCA 23
   High Court of Australia
   French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ
   Tax Bonus for Working Australians Act (No 2) 2009 (Cth) – constitutional law - held that it was a valid
   law of the Commonwealth – held that plaintiff had standing to seek relief claimed in his writ of
   summons & statement of claim – there was an appropriation of the Consolidated Revenue Fund
   within the meaning of the Constitution in respect of payments by the Commissioner required by s7
   Tax Bonus for Working Australians Act (No 2) 2009 (Cth).
   Pape



   Diakyne Pty Limited v Ralph [2009] FCA 721
   Federal Court of Australia
   Jagot J (in Sydney)
   s131(H) Corporations Act 2001 (Cth) – bonuses - directors’ duties – civil penalty provisions –
   compensation for damage - contract providing for services of managing director for a corporation –
   provision in contract entitling second respondent to a bonus payment subject to certain conditions -
   whether first respondent in breach of his duties as director of applicant in authorising & directing
   payment of a bonus to second respondent – whether any reasonable person exercising powers &
   discharging duties as director of the corporation would have authorised or directed the payment to
   be made – contraventions of ss180(1), 181(1) &182(1) established.
   Diakyne



   Liverpool City Council v Estephan Estephan (Executor and Administrator of the Estate of the late
   Jocelyn Estephan & Ors) [2009] NSWCA 161
   Court of Appeal of New South Wales
   Giles, McColl & Basten JJA
   Personal injuries – costs – liability hearing only in District Court - fatal motor vehicle accident at
   intersection – proceedings against driver, owner of car & Council – primary judge had apportioned
   liability 20:80 between driver & Council – finding by primary judge that deceased driver not
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  negligent was not erroneous - (by majority) primary judge's apportionment was open to him – appeal
  partially successful, in relation to costs orders – primary judge had made indemnity costs orders
  against the Council - very detailed analysis of Australian & United Kingdom case law.
  Liverpool City Council



  Paice v Hill [2009] NSWCA 156
  Court of Appeal of New South Wales
  Allsop P; Giles & Ipp JJA
  ss96 & 109 Motor Accidents Compensation Act 1999 (NSW) - interpretation – Motor Accidents
  Authority of NSW, Motor Accidents Assessment Service, Claims Assessment Guidelines (March
  2006) - objects of the legislation - effect of delegated legislation on interpretation of a statute -
  statutory compensation in respect of motor accidents - whether application made under s96 suspends
  time running under s109 for commencement of court proceedings – primary judge had dismissed an
  application by defendant in District Court for an order that proceedings commenced by the plaintiff
  be dismissed for failure to comply with s109 – appeal by District Court defendant allowed - action
  brought by plaintiff in District Court dismissed.
  Paice



  Kingsway Group Limited (formerly known as Willis & Bowring Mortgage Investments Ltd) v
  Belramoul & Ors [2009] NSWSC 608
  Supreme Court of New South Wales
  Schmidt AJ
  Mortgages - mortgagee's power of sale - defendants’ Mosman property – no breach of duty by
  mortgagee - orders sought granted – detailed consideration of case law.
  Kingsway Group



  Robson v Daley [2009] NSWSC 633
  Supreme Court of New South Wales
  Hammerschlag J
  Costs where proceedings settled – proceedings in relation to a property at Cooranbong - held neither
  party had acted so unreasonably that there should be an order other than that each pay their own
  costs.
  Robson
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  Penola Trading Co Pty Ltd v Sunny Springs Pty Ltd [2009] VSCA 161
  Court of Appeal of Victoria
  Maxwell P, Weinberg JA & Kyrou AJA
  Contracts - sale of business – hotel with gaming facilities – primary judge correct in finding that
  appellant had repudiated the Agreement, that respondent had validly accepted the repudiation &
  was entitled to retain the deposit – both parties on appeal accepted that primary judge had erred in
  giving judgment for respondent on its counterclaim, as respondent was obliged to set off costs of the
  aborted sale against the deposit it had retained.
  Penola Trading
  Penola Trading – decision 6 February 2008 - vendor’s refusal to allow purchaser to nominate another entity – landlord’s
  consent – time of essence – repudiation by inaction – estoppel



  Cameron v McMahon & Anor [2009] VSC 277
  Supreme Court of Victoria
  Davies J
  Professional negligence – accountant - plaintiff claiming against defendants in tort & in equity
  alleging breach of duties & under statute - conflict of interest – whether defendant warned the
  plaintiff to seek independent legal advice - held that defendants liable in negligence & for breach of
  fiduciary duty - breach of s9 Fair Trading Act 1999 (Vic) & s52 Trade Practices Act 1974 (Cth) - plaintiff
  awarded $222,609.32.
  Cameron



  Rod Investments (Vic) Pty Ltd v Abeyratne & Ors (No 2) [2009] VSC 278
  Supreme Court of Victoria
  Hansen J
  Proportional liability - group proceeding – trial of twelve preliminary questions – whether claims
  apportionable within meaning of Part 7.10 Div 2(A) Corporations Act 2001 (Cth); Part 2 Div 2 Sub Div
  G(A) Australian Securities & Investments Commission Act 2001 (Cth); Part 6(A) Trade Practices Act 1974
  (Cth); Part 4(AA) Wrongs Act 1958 (Vic).
  Rod Investments (Vic)
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  Green v President of the Industrial Court of Qld & Q-COMP [2009] QSC 180
  Supreme Court of Queensland
  Dutney J
  s36(A) Workers’ Compensation & Rehabilitation Act 2003 (Qld) – date of injury – lung cancer - applicant
  contending cancer caused or contributed to by his exposure to asbestos - applicant seeking order in
  nature of certiorari quashing first respondent’s decision which set aside decision of an industrial
  magistrate - whether first respondent had fallen into jurisdictional error – no jurisdictional error
  demonstrated.
  Green
  Q-Comp – decision Qld Industrial Court 31 October 2008




  Key: (I) Insurance, (B) Banking, (C) Construction

								
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