Thursday, 1 October 2020

Daily Banking A Daily Bulletin listing Decisions of Superior Courts of

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Australian Competition and Consumer Commission v Woolworths Group Limited (formerly called Woolworths Limited) (FCAFC) - consumer law - appeal concerning 'promotion and sale' of 'disposable products' - appellant contended respondent contravened Australian Consumer Law - primary judge dismissed proceedings - appeal dismissed

CPL Notting Hill Pty Ltd v Microsoft Corporation (FCA) - stay - costs - respondent sought that costs in appellants' favour 'should be stayed' pending retrial's result - stay granted

Kenquist Nominees Pty Limited ATF The Kenquist Superannuation Fund v Campbell (No 6) (FCA) - corporations - representative proceedings - applicant sought approval of proceeding's settlement - approval granted

Shalhoub v Johnson (NSWSC) - negligence - plaintiff claimed in negligence against defendants for breach of duty of care in s177 Conveyancing Act 1919 (NSW) - amended statement of claim dismissed

Roma Lopeman v WIN Corporation Pty Ltd (NSWSC) - contract - easement - easement granted pursuant to s88K Conveyancing Act 1919 (NSW)

Dunn v Perpetual Trustee Company Ltd (VSC) - summary judgment - wills and estates - family provision - plaintiff sought further provision from deceased's estate - claim had no prospects of success - defendant granted summary judgment

O'Toole v Atkins (SASC) - intervention order - recusal - procedural fairness - Magistrate

Page 1 'dramatically disqualified herself' - denial of procedural fairness - inadequacy of reasons - appeal allowed

Summaries With Link (Five Minute Read)

Australian Competition and Consumer Commission v Woolworths Group Limited (formerly called Woolworths Limited) [2020] FCAFC 162 Full Court of the Federal Court of Australia Foster, Wigney & Jackson JJ Consumer law - appeal concerning 'promotion and sale' of 'disposable products' - appellant sought 'declarations, injunctions, pecuniary penalties, publication orders and costs' for claimed contraventions by respondent of ss18, 29(1)(a), 29(1)(g) & 33 Australian Consumer Law - primary judge dismissed proceeding - appellant appealed - statements on packaging - 'get-up typified by' packaging - “Biodegradable and Compostable” - whether misleading and deceptive conduct - whether conduct likely to mislead or deceive - whether respondent made representations concerning time it would take products 'to biodegrade or compost' - whether respondent made representation that products would biodegrade or compost within 'reasonable time' in certain conditions - held: appeal dismissed. Australian Competition and Consumer Commission

CPL Notting Hill Pty Ltd v Microsoft Corporation [2020] FCA 1399 Federal Court of Australia O'Callaghan J Stay - costs - Court ordered retrial in proceeding and that respondent's pay appeal costs - respondent sought that costs in appellants' favour 'should be stayed' pending retrial's result - r41.03 Federal Court Rules 2011 (Cth) - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 - Dahler v Australian Capital Territory [2016] FCA 257 - held: stay granted. CPL

Kenquist Nominees Pty Limited ATF The Kenquist Superannuation Fund v Campbell (No 6) [2020] FCA 1388 Federal Court of Australia McKerracher J Corporations - representative proceedings - proceedings concerning purchase of shares in company - applicant, on behalf of persons who had purchased shares, contended company 'failed to disclose material information to potential investors' - applicant sought approval of proceeding's settlement including Settlement Distribution Scheme's approval - s33V Federal Court of Australia Act 1976 (Cth) - 'fair and reasonable' - held: approval granted. Kenquist

Shalhoub v Johnson [2020] NSWSC 1321

Page 2 Supreme Court of Darke J Negligence - plaintiff owned property - defendants owned adjoining property - 'retaining wall' ran adjacent to boundary between parties' properties - plaintiff claimed in negligence against defendants for breach of duty of care in s177 Conveyancing Act 1919 (NSW) - whether work near retaining wall negligently done with result retaining was destabilised and plaintiff's property damaged - whether 'building works 'carried out negligently' - ss5B & 5C Civil Liability Act 2002 (NSW) - held: amended statement of claim dismissed. View Decision

Roma Lopeman v WIN Corporation Pty Ltd [2020] NSWSC 1305 Supreme Court of New South Wales Sackar J Contract - estoppel - plaintiff sought that defendant ’perform its obligations’ under agreement by granting ’vehicular access’ easement to plaintiff’s land - alternatively plaintiff sought declaration defendant estopped from departing from agreement’s terms - in further alternative plaintiff, pursuant to s88K Conveyancing Act 1919 (NSW), sought imposition of easement by ’Right of Carriageway over the defendant’s land’ - whether ’binding and enforceable agreement’ - whether estoppel - whether plaintiff satisfied ’statutory test’ in s88K Conveyancing Act - held: easement granted pursuant to s88K Conveyancing Act 1919 (NSW). View Decision

Dunn v Perpetual Trustee Company Ltd [2020] VSC 611 Supreme Court of Englefield JR Summary judgment - wills and estates - family provision - plaintiff sought further provision from deceased's estate under pt IV Administration and Probate Act 1958 (Vic) (Administration and Probate Act) - defendant sought summary judgment on basis claim had 'no real prospect of success' - ‘eligible person’ - s90 Administration and Probate Act - whether, at time deceased died, plaintiff had 'degree of dependency' on deceased - held: claim had no prospects of success - summary judgment granted. Dunn

O'Toole v Atkins [2020] SASC 166 Supreme Court of Lovell J Intervention order - recusal - procedural fairness - Magistrate, after two days of hearing intervention order application, 'dramatically disqualified herself' - appellant sought to appeal - applicant contended Magistrate erred by failure to invited parties' submissions concerning recusal and by failure to 'give reasons' - appellant sought remittal of matter before 'same Magistrate - whether 'special reasons' warranting leave to appeal - s42 Magistrates Court Act 1991 (SA) - whether reasons inadequate - whether denial of procedural fairness - held: appeal

Page 3 allowed. O'Toole

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