Recent Cases - 13wentworthselbornechambers
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Recent Cases

High Court of Australia

  • Catchwords: Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder’s acceptance of owners’ repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution. Words and phrases – “accrued rights”, “alternative restitutionary remedy”, “common counts”, “completed stage”, “contract price ceiling”, “contractual incentives”, “domestic building contract”, “failure of basis”, “failure of consideration”, “limit on recovery”, “measure of restitution”, “notice”, “primary and secondary obligations”, “principle of legality”, “protective provisions”, “qualifying or vitiating factor”, “quantum meruit”, “quasi-contractual obligation”, “repudiation”, “restitution”, “subjective devaluation”, “unjust enrichment”, “variations”, “work and labour done”.

  • Catchwords: Immigration – Refugees – Application for protection visa – Immigration Assessment Authority (“Authority”) – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review – Where Secretary of Department of Immigration and Border Protection gave Authority documents and information – Where Secretary notified Authority that s 473GB applied to documents and information – Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – Where documents and information not disclosed to referred applicant during review – Where fact of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to referred applicant. Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority – Whether implied obligation of procedural fairness precluded. Words and phrases – “disclosure”, “document or information”, “exclusion of procedural fairness”, “exhaustive statement”, “fact of notification”, “natural justice hearing rule”, “notification”.

  • Catchwords: Companies – Shares – Implied prohibition against financial assistance by company to acquire shares in company – Meaning of “financial assistance” – Where s 260A(1) of Corporations Act 2001 (Cth) provides that company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its creditors – Where appellant companies’ constitutions contained pre-emption clause which provided that, before a shareholder could transfer shares of a particular class, those shares must first be offered to existing shareholders of that class in proportion to the number of shares of that class already held by that shareholder – Where sole shareholder of one shareholder company entered into agreements for sale of shares – Where appellant companies claimed that agreements breached pre-emptive rights provisions – Where injunction sought under s 1324 of Corporations Act to restrain appellant companies from prosecuting proceedings in relation to pre‑emptive rights on basis that proceedings contravened the prohibition against financial assistance in s 260A(1) – Whether funding by company of legal proceedings directed at compelling one shareholder to offer shares to other shareholders is financial assistance – Whether the companies should be enjoined from continuing legal proceedings at their expense to vindicate alleged breach of pre-emptive rights. Words and phrases – “acquisition of shares”, “creditors”, “financial assistance”, “implied prohibition against financial assistance”, “injunction”, “material prejudice”, “power to enforce company constitution”, “pre-emptive rights”, “shareholders”.

  • Catchwords: Criminal practice – Private prosecution – Authority to prosecute – Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268.11 of Criminal Code (Cth) – Where offence located within Div 268 of Criminal Code – Where s 268.121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General’s written consent – Where Attorney-General did not consent – Where s 268.121(2) of Criminal Code provides that offence against Div 268 “may only be prosecuted in the name of the Attorney-General” – Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may “institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth” unless contrary intention appears – Whether s 268.121(2) expresses contrary intention for purpose of s 13(a) – Whether s 268.121(2) precludes private prosecution of offence against Div 268. Words and phrases – “commencement of proceedings”, “committal”, “consent”, “consent of the Attorney-General”, “contrary intention”, “crime against humanity”, “in the name of”, “indictable offence against the law of the Commonwealth”, “private prosecution”, “prosecuted in the name of the Attorney- General”, “relator proceeding”, “right to prosecute”, “summary proceedings”, “trial on indictment”.

  • Catchwords: Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff’s non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened. Words and phrases – “additional or separate punishment”, “judicial power”, “legislative punishment”, “legislatively resentenced”, “life imprisonment”, “minimum term”, “more punitive or burdensome to liberty”, “non-parole period”, “opportunity to be considered for release on parole”, “parole”, “severity of the punishment”, “substantive operation and practical effect”.

Full Federal Court

  • Catchwords: MIGRATION – protection visas – appeals from decisions of the Federal Circuit Court of Australia – applications for judicial review of decisions of the Immigration Assessment Authority (the “Authority”) – decision by the first respondent refusing application by a father and his son for protection visas – whether the Authority committed jurisdictional error – whether the Authority was reviewing one or two decisions – whether information supplied to Authority ahead of review was “new information” – whether Authority had regard to contentions advanced – whether it was legally unreasonable for the Authority to consider new information in respect of the father but not the son – whether Authority unreasonably failed to consider exercising its power to invite the father to an interview or to otherwise get new information – appeals dismissed

  • Catchwords: MIGRATION – whether the Minister’s exercise of his power under s 46A(2C) of the Migration Act 1958 (Cth) to revoke his determination to allow certain persons (including the appellant) to lodge an application for a Temporary Protection visa or Safe Haven Enterprise visa under s 46A(1) was subject to a requirement of procedural fairness, and if so, whether the appellant was afforded procedural fairness MIGRATION – whether the Minister ‘noting’ and commenting on a Departmental submission about the manner in which an Informed Referral to Status Resolution (IRSR) process would be undertaken by officers of the Department in relation to the appellant constituted a ‘personal procedural decision’ of the Minister – whether the possibility of detention being prolonged is a sufficient interest to engage a duty to afford procedural fairness in conducting the IRSR process – where Minister accepted that, if a duty were owed, the appellant was not afforded procedural fairness

  • Catchwords: COSTS – application for indemnity costs – whether refusal of genuine offer of compromise was unreasonable – application refused

  • Catchwords: CONSUMER LAW – misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) – misleading representation that yacht would be suitable for ocean voyages – where yacht not constructed to be capable of ocean voyages DAMAGES – causation – assessment of loss and damage – construction of “loss or damage” under s 4K of Trade Practices Act – remedies under ss 82 and 87 of Trade Practices Act – rule in Potts v Miller (1940) 64 CLR 282 and approach in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 – “no transaction” case – where representee would not have purchased yacht if misrepresentation not made – where yacht not as represented – where misleading conduct was a cause of the loss or damage suffered – where representor claimed no damage caused because representee would have paid similar sums on another yacht – whether either party required or entitled to allege or prove other courses of action open – whether appropriate for the court to consider hypothetical counterfactual scenario DAMAGES – assessment of loss and damage – where asset was a non-income producing vessel – where appellants continued to use vessel after becoming aware of misrepresentation – whether court required to take account of benefit derived from use of the vessel – where claim is for economic loss and not loss of enjoyment – measure of damages for non-income producing vessel DAMAGES – assessment of loss or damage – costs incurred in owning and operating vessel – where appellants incurred significant costs repairing and upgrading vessel – whether appellants entitled to damages for consequential loss in a “no transaction” case

  • Catchwords: PATENTS – appropriate form of orders to give effect to the Full Court’s reasons for judgment on appeal – whether a declaration should be granted and the form of that declaration – whether injunctions should be granted and the form of those injunctions – whether it is appropriate to grant an injunction in general form

NSW Court of appeal

  • Catchwords: ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition

  • Catchwords: APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed

  • Catchwords: APPEAL – Misleading or deceptive conduct – accessorial liability – representation as to future conduct – determination of liability where applicant held liable for causes of action not pleaded against him – whether failure to accept offer of insurance was a failure to mitigate loss – apportionment of liability – variation of costs orders – joint and several liability

  • Catchwords: CIVIL PROCEDURE – effect of grant of “liberty to apply” – whether costs order final – time limit for applying to vary a final order – dispensing with filing of notice of motion under s 14 Civil Procedure Act COSTS – offer of compromise – whether judgment “no more favourable” than offer – when order “otherwise” appropriate

  • Catchwords: LAND LAW – compulsory acquisition of land – compensation – where applicants entered into contracts for sale of relevant land – where land compulsorily acquired before settlement of those contracts – where applicants objected to amount of compensation for market value – where applicants’ primary compensation claim for unpaid purchase price as loss attributable to disturbance under Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(f) – where questions directed to whether applicants entitled to any compensation for that loss determined separately – whether there was “actual use of land” by applicants