BRIEF NOTE

Recent Developments and Practical Tips for Lawyers

ISSUE 16 : SUMMER 2011

Contents

INTERNATIONAL ARBITRATION ACT 1974 (CWTH) DOES PRIVITY OF CONTRACT APPLY?
by Jim Thomson

LIMITATION OF ACTIONS - AMENDMENT OF PLEADINGS AFTER LIMITATION EXPIRY - CIVIL PROCEDURE ACT s 65 - State of New South Wales v Steven Charles Radford [2010] NSWCA 276
by Jason Downing

AGENCY - APPARENT AUTHORITY: Thanakharn Kasikorn Thai Chamkat (Mahachon) v Akai Holdings Ltd (in liquidation) [2010] HKCFA 63
by Benjamin Kasep

AUSTRALIAN CONSUMER LAW
by Therese Catanzariti

ISSUE 15 : SPRING 2010

Contents

SELF-INCRIMINATING EVIDENCE: SECTION 128 CERTIFICATES
by Justin Conomy

DEFAMATION - QUALIFIED PRIVILEGE: Aktas v Westpac Banking Corporation Ltd [2010] HCA 25
by Jennifer Beck

SUCCESSION - FAMILY PROVISION - Adult Son: Hastings v Hastings [2010] NSWCA 197
by Therese Catanzariti

EMPLOYEE RESTRAINTS OF TRADE: Hanna v OAMPS Insurance Brokers Ltd [2010] NSWCA 267 ("Hanna"); Ross v IceTV [2010] NSWCA 272 ("IceTV").
by Nicholas Newton

TORT - CIVIL LIABILITY ACT: Woolworths Ltd v Strong [2010] NSWCA 282 ("Strong"); Kempsey Shire Council v Baguley [2010] NSWCA 284 ("Baguley")
by Stuart Kettle

ISSUE 14 : WINTER 2010

Contents

CONSTRUCTIVE TRUSTS: JOHN ALEXANDER'S CLUBS v WHITE CITY TENNIS CLUB [2010] HCA 19
by Christopher Wood

CORPORATIONS - Deeds of Company Arrangement: Lehman Brothers Holdings Inc v City of Swan [2010] HCA 11
by Jim Thomson

COMMERCIAL ARBITRATION - Opting out of Model Law: Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 887
by Jennifer Beck

EQUITY & SUCCESSION - Proprietary Estoppel: Delaforce v Simpson-Cook [2010] NSWCA 84
by Ramena Kako

PRACTICE POINTS - Federal Magistrates Court - Robes
by Edmund Finnane

ISSUE 13 : AUTUMN 2010

Contents

LOSS OF A CHANCE
by Michael Windsor SC

CONSITUTITIONAL LAW - JURISDICTIONAL ERROR: Kirk v Industrial Relations Commission [2010] HCA 1
by Jennifer Beck

SUCCESSION - INTESTACY: Succession Amendment (Intestacy) Act 2009
by Ramena Kako

CONTRACT - ORAL AGREEMENT CONTEMPLATING DEED - SETTLEMENT OF PROCEEDINGS BY COUNSEL: Humphris-Clark v Lazaridis [2010] NSWSC 318
by Jason Downing

PRACTICE POINTS - Pleadings
by Edmund Finnane

ISSUE 12 : SUMMER 2009/10

Contents

PROPORTIONATE LIABILITY
by David Parish

SUCCESSION - STATUTORY WILLS: Fenwick Re: Application of J R Fenwick and Re Charles [2009] NSWSC 530
by Ramena Kako

CORPORATIONS - MISLEADING OR DECEPTIVE CONDUCT - OPINION ON A MATTER OF LAW: ASIC v Fortescue Metals Group Ltd (No 5) [2009] FCA 1586
by Edmund Finnane

APPREHENDED BIAS: British American Tobacco Australia Services Limited v Laurie & Ors [2009] NSWCA 414
by Jason Downing

ISSUE 11 : SPRING 2009

Contents

CAUSATION
by Stuart Kettle

CORPORATIONS - Schemes of Arrangement - Section 411 put through a Yoga Course: In the matter of Opes Prime Stockbroking Limited [2009] FCA 813; Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited [2009] FCAFC 125.
by Jim Thomson

... But don't try this under Pt 5.3: City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130
by Jim Thomson

NEGLIGENCE - the "Shirt Calculus": Roads & Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263
by Jason Downing

ISSUE 10 : AUTUMN 2009

Contents

INSOLVENCY - Deeds of Company Arrangement - Creditors Trusts: Parkview Constructions Pty Ltd v Tayeh & Ors [2009] NSWSC 186
by Edmund Finnane

TRUSTS - Disclosure of trust documents to beneficiaries of a discretionary trust: Breakspear v Ackland [2009] Ch 32
by Benjamin Kasep

PRACTICE AND PROCEDURE - implied undertaking in respect of documents disclosed in litigation: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125:
by John Graves SC

A COMMENT ON HEARNE v STREET
by Edmund Finnane

PRACTICE AND PROCEDURE - The discovery of 'masked' documents and extracts: Areva Nc (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 67; Egglishaw v ACC (No 2) (2009) 253 ALR 354
by Benjamin Kasep

INSOLVENCY UPDATE - Statutory Demands
by Christopher Wood

ISSUE 9 : SPRING / SUMMER 2008

Contents

INJURY DURING SURGERY DOES NOT NECESSARILY ARISE FROM NEGLIGENCE
by Stuart Kettle

CONTRACT - DAMAGES - Anti-Shevill clauses: Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 82 ALJR 576; [2008] HCA 10
by Edmund Finnane

REAL PROPERTY - TORRENS TITLE: Black v Garnock (2007) 230 CLR 438; [2007] HCA 31
by John Graves SC

NEW PUBLICATIONS
Commercial Damages, 2nd Edition of "Damages in a Commercial Context", by Sydney Jacobs
Pleading Precedents, 6th Edition, by Joseph Azize, Peter El Khouri and Edmund Finnane

ISSUE 8 : WINTER 2008

Contents

PRIVILEGE AND DRAFT EXPERT REPORTS
by Christopher Wood

DAMAGES - Gratuitous Domestic Assistance under Section 15 of the Civil Liability Act - Harrison v Melhem [2008] NSWCA 67
by Jason Downing

PROPORTIONATE LIABILITY - Part 4 Civil Liability Act 2002 - proof of an "apportionable claim": Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187
by Gary Doherty

LEASES - measure of damages for breach of covenant not to alter demised premises: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38
by Julie Wilcsek

ECONOMIC TORTS - Conspiracy to cause loss by unlawful means: Revenue and Customs Comrs v Total Network SL [2008] 2 WLR 711; OBG Ltd v Allan [2008] 1 AC 1
by Benjamin Kasep

ISSUE 7 : AUTUMN 2008

Contents

FREEZING ORDERS, MONETARY LIMITS AND PRACTICE NOTE SC GEN 14
by Simon Gregory

CORPORATIONS - Directors' Penalty Notices and s 1318 - Dick v Deputy Commissioner of Taxation [2008] HCATrans 084
by Andrew Bouris

LEASES - Gumland Property Holdings Limited v Duffy Bros Fruit Ma (Campbelltown) Pty Limited [2008] HCA 10
by John Graves SC

PRIVILEGE - Client legal privilege in the absence of a valid retainer: Hawksford & Anor v Hawksford & Ors [2008] NSWSC 31
by Nic Angelov

PRELIMINARY DISCOVERY - "reasonable inquiries" & relevance of FOI - Roads & Traffic Parks Pty Ltd [2007] NSWCA 114
by Gary Doherty

ISSUE 6 : SUMMER 2007/2008

Contents

RECIPIENT LIABILITY FOR BREACH OF TRUST OR FIDUCIARY DUTY
by Sam Duggan

CONTEMPT - Breach of implied undertaking as to use of documents obtained in court proceedings: Street v Hearne [2007] NSWCA 113
by Benjamin Kasep

MEDICAL NEGLIGENCE - Claims arising out of events occurring in utero: Mills v Lee & Ors [2007] NSWCA 332
by Jason Downing

MORTGAGES: Mortgagor trumps Second Mortgagee: New Beach Apartments Pty Ltd v Epic Hotels Pty Ltd [2007] NSWSC 474
by Edmund Finnane

NEW PUBLICATIONS
Commercial Damages, 2nd Edition (Thomson) by Sydney Jacobs
Equity Practice and Precedents (Thomson) by Edmund Finnane, Nicholas Newton and Christopher Wood

ISSUE 5 : SPRING 2007

Contents

INSURANCE - AVOIDANCE FOR NON-FRAUDULENT NON-DISCLOSURE
by David Davies SC

INSOLVENCY: - Pooling: Corporations Amendment (Insolvency) Act 2007
by Edmund Finnane

FAMILY LAW - Anti-suit injunctions: Lederer and Hunt (2007) FLC 93-311; Christie & Christie [2007] FamCA 125
by Benjamin Kasep

CORPORATIONS - Directors' Penalty Notices and s 1318: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190
by Andrew Bouris

PLEADINGS - Part 5 of Civil Liability Act 2002 - requirement to plead s 42: Port Stephens Council v Theodorakakis [2006] NSWCA 70
by Gary Doherty

COSTS - Interlocutory costs orders in the Federal Court: Fastlane Australia Pty Ltd v Nolmont Pty Ltd [2007] FCA 492
by Tom Brennan

ISSUE 4 : WINTER 2007

Contents

THE CHARACTERISTICS OF A JOINT VENTURE
by John Graves SC

INJUNCTIONS - CONTEMPT OF COURT - Thompson v White [2007] NSWSC 733
by Tom Brennan

INSOLVENCY - Disciplinary Proceedings against Company Auditors and Liquidators - Application of Vouris; Re E-Promotions Pty Ltd & Anor (2003) 47 ACSR 155
by Kerry Eassie

CORPORATIONS - Directors' Penalties Notices and s 1318 - Deputy Commissioner of Taxation v Dick [2006] NSWDC 17
by Andrew Bouris

RESTITUTION - Deutsche Morgan Grenfell Group plc v IRC [2006] 3 WLR 781; Kingstreet Investments Ltd v New Brunswick (Department of Finance) [2007] SCC 1
by Benjamin Kasep

PRACTICE POINTS - WINDING UP - Statutory demands
by Christopher Wood

ISSUE 3 : AUTUMN 2007

Contents

MISLED SHAREHOLDERS TO RANK ALONGSIDE ORDINARY CREDITORS IN INSOLVENCY
by Olga Assabgy

PERSONAL PROPERTY - MEDICAL RECORDS - Mid-City Skin Centre and Laser Centre v Zahedi-Anarak [2006] NSWSC 844.
by Jason Downing

ENVIRONMENT LAW -Gray v Minister for Planning & Ors [2006] NSWLEC 720
by Nic Angelov

TRUSTEES - JUDICIAL ADVICE - Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of the Macedonian Orthodox Church of Aust and NZ [2006] NSWCA 160
by Kerry Eassie

PRACTICE POINTS - COMMERCIAL LITIGATION - claims under s106 of the Industrial Relations Act 1996 (NSW)
by Nicholas Newton

ISSUE 2 : SUMMER 2006 / 2007

Contents

VICTORY FOR COMMON SENSE IN BANKRUPTCY NOTICES
by Christopher Wood

CONSTITUTIONAL LAW - New South Wales v Commonwealth of Australia [2006] HCA 52: the Work Choices Case
by Tom Brennan

TORT - Nuisance - Removal of support - Damages: Roberts v Rodier [2006] NSWSC 282
by Gary Doherty

INTERNATIONAL LAW - Jones v Ministry of the Interior of Saudi Arabia [2006] 2 WLR 1424; [2006] UKHL 26: State immunity for torture
by Benjamin Kasep

RECEIVERS - White v Huxtable (2006) 57 ACSR 435; [2006] FCA 559: Receiver dealing with entity associated with appointor in respect of charged property
by Edmund Finnane

PRACTICE POINTS - Expert Witnesses in Common Law Actions
by John Graves SC

ISSUE 1 : SPRING 2006

Contents

CONTRACTS ILLEGAL UNDER THE TRADE PRACTICES ACT: THE HIGH COURT DECIDES
by Tom Brennan

TRUSTS - ASIC v Carey (No 6) (2006) 58 ACSR 141: Power to appoint receivers to property held under discretionary trusts
by Benjamin Kasep

INDUSTRIAL RELATIONS - Unfair contracts: Industrial Relations Act s 106
by Nicholas Newton

COSTS - Cost Agreements on a conditional basis: Legal Profession Act s 324
by Christopher Wood

TORT - Obvious risk: C G Maloney Pty Ltd v Hutton-Potts & Anor [206] NSWCA 136
by Gary Doherty

PRACTICE POINTS - Property (Relationships Act) - Costs
by Edmund Finnane

To receive this newsletter by mail or to cease receiving it please contact the clerk of the floor, Paul Walker. His email address is paulwalker@13wentworthselbornechambers.com.au.

Important: This newsletter is not advice. You should not act solely on the basis of the material contained in this newsletter. The contents of this newsletter may have been superseded by changes in the law.