Tuesday 22 September 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) Commissioner of Taxation v Burness (As Trustee for the Property of Bottazzi, a Bankrupt) - Income Tax Assessment Act 1936 (Cth) – remission of penalty – – appeal from Administrative Appeals Tribunal dismissed (B)

Julien v Secretary, Department of Employment & Workplace Relations - Social Security (International Agreements) Act 1999 (Cth) – United States pension – definition of ‚benefit‛ in Schedule 13 (B)

Western Districts Developments Pty Limited & Turnpike Lane Pty Ltd v Baulkham Hills Shire Council - Negligence - economic loss - issue of subdivision certificate - appeal upheld (I,C)

Culligan & Anor v Aco Pty Ltd - Trade Practices Act 1974 (Cth) - Fair Trading Act 1987 (NSW) - purchase of a business (I,B,C)

Beck & Anor v Owners Corporation Strata Plan No. 64622 - Strata Schemes Management Act 1996 (NSW) – application by defendant Owners Corporation to stay individual owner's proceedings against it (I,B,C)

Cuesuper Pty Ltd - Trustees’ remuneration (B)

Re Octaviar Ltd (No 7) - Corporations Act 2001 (Cth) - construction of s268(2) (B) Skycity Adelaide Pty Ltd v Valuer-General & Anor - Valuation of Land Act 1971 (SA) – casino premises - annual value" of land, "gross annual rental‛ (B,C)

Re the State Coroner; ex parte the Minister for Health - Coroners Act 1996 (WA) - nature of a 'finding' within s25(1) (I)

Ross Ambrose Group Pty Ltd v Renkon Pty Ltd - Professional negligence – solicitor’s duty of care (I)

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Re a Psychologist - Disciplinary proceedings - procedural fairness (I)

AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd & Anor - Construction Contracts (Security of Payments) Act (NT) - adjudicator’s determination – whether determination void - application dismissed (C)

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Summaries with links (5 minute read)

Tuesday 22 September 2009

Commissioner of Taxation v Burness (As Trustee for the Property of Bottazzi, a Bankrupt) [2009] FCA 1021 Federal Court of Australia Gordon J (in Melbourne) Income Tax Assessment Act 1936 (Cth) – remission of penalty – reduction of additional tax payable from 75 % of tax shortfall to 25 % of tax shortfall – appeal from Administrative Appeals Tribunal dismissed – detailed examination of case law including as to ‘fraud or evasion.’ Commissioner of Taxation

Julien v Secretary, Department of Employment & Workplace Relations [2009] FCA 1051 Federal Court of Australia Spender J (in Brisbane) Social Security (International Agreements) Act 1999 (Cth) – whether Centrelink was right to deduct retirement benefits paid to appellant by United States Social Security Administration from his Newstart Allowance pursuant to Schedule 13 of the Act – whether appellant’s United States pension exempt as it is superannuation – definition of ‚benefit‛ in Schedule 13 – ‚benefit‛ comprehends a US social security benefit – appellant’s benefit was not paid under any of the Australian superannuation guarantee laws specified in Schedule 13 – appeal from magistrate’s decision dismissed. Julien

Western Districts Developments Pty Limited & Turnpike Lane Pty Ltd v Baulkham Hills Shire Council [2009] NSWCA 283 Court of Appeal of Giles, Campbell JJA, & Preston CJ Torts - negligence - economic loss - issue of subdivision certificate - liability of local council as principal certifying authority for subdivision – no defence raised under Civil Liability Act 2002 (NSW) - for decision appealed from, dated 31 July 2008, see ‘Benchmark’ Monday 4 August 2008 & link below - appeal upheld – orders made 31 July 2008 set aside – Magistrate’s orders set aside - matter remitted to Local Court for quantum of damages to be assessed – extensive consideration of case law. Western Districts Developments Pty Limited Western Districts Developments Pty Limited – Supreme Court decision 31 July 2008 - reported at 160 LGERA 422 - negligence - vulnerability - duty of care – subdivision of land at Rouse Hill – development consent – subdivision

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certificate - whether Council owed Western District Developments a duty of care to compensate it for economic loss - Magistrate had decided that it did not, largely because Western District Developments was not vulnerable – Community Land Development Act 1989, Environmental Planning & Assessment Act 1979 (NSW), Water Act 1994 (NSW) - appeal from Magistrate dismissed.

Culligan & Anor v Aco Pty Ltd [2009] NSWCA 290 Court of Appeal of New South Wales Basten, Young JJA, & Sackville AJA Trade Practices Act 1974 (Cth) - Fair Trading Act 1987 (NSW) - purchase of a business - whether misleading or deceptive representations were made by vendor - whether representations caused purchaser loss or damage - significance of contractual disclaimer on issue of reliance - appeal allowed - judgment for appellants (first & second defendants). Culligan

Beck & Anor v Owners Corporation Strata Plan No. 64622 [2009] NSWSC 962 Supreme Court of New South Wales Forster J Strata Schemes Management Act 1996 (NSW) – application by defendant Owners Corporation to stay individual owner's proceedings against it - obligations on defendant Owners Corporation under s.62 to properly maintain & keep in a state of good & serviceable repair common property – high rise apartment block in Darlinghurst – defendant has commenced proceedings against builders alleging defective balustrades on balconies - individual owner seeks damages against defendant alleging breach of obligations imposed by s62 - whether prosecuting action against builder satisfies owners corporation’s obligations under s62 - whether individual owner must first exhaust his or her remedies by proceeding under Chapter 5 of the Act - individual owner's proceedings not stayed – proceedings referred to mediation. Beck

Cuesuper Pty Ltd [2009] NSWSC 981 Supreme Court of New South Wales Palmer J Trustees’ remuneration – whether trustee justified in amending trust deed of superannuation fund to provide for remuneration of trustee – answer ‘yes.’ Cuesuper Pty Ltd

Re Octaviar Ltd (No 7) [2009] QCA 282 Court of Appeal of Queensland Holmes, Muir JJA, & White J Corporations Act 2001 (Cth) - construction of s268(2) – for decision appealed from, see ‘Benchmark’ B & IBC Tuesday 10 March 2009 & link below - lodgement of notice with Australian Securities &

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Investments Commission – appellant Fortress Credit Corporation (Australia) II Pty Limited appealing against primary judge’s declaration that a charge on property of Octaviar Ltd, the first respondent, was void as a security on that property to the extent that it would secure Octaviar Ltd’s liability under a guarantee, generally referred to as ‚YVE Guarantee,‛ of a loan made by Fortress – appeal allowed. Re Octaviar Octaviar Limited - decision 6 March 2009 - charges – ‚transaction documents‛ - proceedings brought by Public Trustee of Queensland for termination of two Deeds of Company Arrangement.

Skycity Adelaide Pty Ltd v Valuer-General & Anor [2009] SASC 289 Supreme Court of South Australia Bleby J Valuation of Land Act 1971 (SA) – casino premises occupying major portion of heritage-listed building formerly part of Adelaide Railway Station - appeals dismissed – an interesting review of UK & Australian case law -"annual value" of land, "gross annual rental." Skycity Adelaide Pty Ltd

Re the State Coroner; ex parte the Minister for Health [2009] WASCA 165 Court of Appeal of Western Australia Martin CJ, Buss, & Miller JJA Coroners Act 1996 (WA) - deceased, suffering from mental illness, with knife had been shot by police officer trying to apprehend him – for decision 30 October 2008, see ‘Benchmark’ I & IBC Monday 3 November 2008 & link below - nature of a 'finding' within s25(1) - what an applicant under s52(1) must establish in order to satisfy Court that Coroner's 'findings' are against evidence or weight of evidence - whether impugned statements in Coroner's Report were 'findings' within s25(1) – appeal dismissed – detailed consideration of case law from UK & Australia. Re the State Coroner Re the State Coroner – decision 30 October 2008 - Coroners - Minister's application for declaration that what were said to be findings were void – inquest into death of mentally ill man shot by police officer whom he had attacked with a knife – the deceased had been treated in the public health system by a consultant psychiatrist - representation of coroner whose findings are called into question – Coroner’s report contained two passages which Minister for Health considered to be findings adverse to the psychiatrist, which the Minister sought have declared void under s52(1) of the Act - impugned statements not findings within s52.

Ross Ambrose Group Pty Ltd v Renkon Pty Ltd [2009] TASSC 86 Supreme Court of Tasmania Tennent J Professional negligence – solicitor’s duty of care – determination of liability - defendants owed a duty of care to plaintiffs which required solicitor to alert plaintiffs to possibilities available under Covenant Agreement – liability established.

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Ross Ambrose Group Pty Ltd

Re a Psychologist [2009] TASSC 70 Supreme Court of Tasmania Blow J Disciplinary proceedings - the duties of disciplinary committee & Psychologists Registration Board of Tasmania to provide procedural fairness extended to require them to give appellant reasonable notice as to alleged status of any alleged or admitted improper conduct - appeal upheld - Board had failed to afford the appellant procedural fairness in relation to proposition that he was guilty of common law professional misconduct; also the reasons it gave for its decision were inadequate – Australian case law considered. Re a Psychologist

AJ Lucas Operations Pty Ltd v Mac-Attack Equipment Hire Pty Ltd & Anor [2009] NTSC 48 Supreme Court of the Northern Territory Kelly J Construction Contracts (Security of Payments) Act (NT) - adjudicator’s determination – whether determination void - equipment hire contract – Bonaparte Gas Pipeline Project - when ‚payment dispute‛ arises – application dismissed. AJ Lucas Operations Pty Ltd

A quiet suburban life on Sydney’s leafy ...

Governor Phillip, having dealt with the problem of famine in the first settlement at Sydney, then had to tackle the provision of housing. He despatched an exploration party consisting of Lieutenant Ball & two marines, who made a track through East Lindfield & Roseville known as ‘Ball’s Trail,’ ending at Ball’s Head. In the first ten years of the nineteenth century, George Caley, botanist, made a study of the flora & fauna of the North Shore. There was enthusiasm for its excellent timber – the many varieties of eucalypts, blackbutts, iron-barks, stringy barks & blue-gums. From about 1810, timber for the colony’s housing was supplied from the forests of the North Shore, particularly from the area round modern Chatswood to Wahroonga. Convict labourers felled the trees; the timber was hauled to great saw-pits which they had dug out; once there, it was cut to size for haulage & use. The convicts were employed either by a Government camp establishment, or else as assigned labour to master sawyers, either free settlers or ticket-of-leave men. Haulage also found employment for stockmen, boatmen, wheelwrights & carriage drivers.

These pioneers of the North Shore, the convict timber gangs, camped out, living in slab & bark huts, eating salt beef & damper. Bullock drays & jinkers carried the logs towards the city, turning off at down Fiddens Wharf Road & reaching the , from whence the timber was punted.

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The swish of the pit saws, the shouts of the bullock drivers, the crack of their whips, the hard & boisterous labour was matched by the vigour of favoured recreations - the old English sports of bare-knuckle boxing, cock fighting & gambling. Various horse-racing courses, all dangerous, were established, one a spirited dash through Pymble starting at the post office. Illicit stills & the rum trade were a source of trouble; then came the licensed inns, such as ‘The Green Gate’ on the bullock track which was to become the Pacific Highway. Originally housed in a cottage, its first licence was granted in 1833 to John Johnson. In 1853, the property was sold to Thomas Waterhouse (b. 1810, ,) master sawyer, carpenter, boatman, timber dealer, who replaced the earlier building. Tom Waterhouse established a racecourse at Cook’s Flat, Fiddens Wharf Road which as at 1882 boasted a grandstand. Tom was also responsible for establishing horse-racing & bare-knuckle boxing at Bingham’s Ring, named for a well-known pugilist, & now the site of the oval & park on ten acres at East Killara on Arterial Road. Tom Waterhouse himself took part in a great boxing encounter at Pearce’s Corner in 1860, against Burke, the Victorian champion. By 1884 his son John Waterhouse, also a keen sportsman, had succeeded his father as owner of the hotel until his death in 1903. Bingham’s Ring was notified for public recreation in 1892.

‚I am he who paved the way, that You might walk at your ease today.....‛

From ‘Old Botany Bay,’ written in 1900 by Dame Mary Gilmore (1865-1962) http://oldpoetry.com/opoem/25794-Dame-Mary-Gilmore-DBE-Old-Botany-Bay

‘The Boxers’ a lithograph from 1818 by the French artist Théodore Gericault (1791–1824) http://collection.artgallery.nsw.gov.au/collection/results.do;jsessionid=9032D3C7478DE9CC5C1EE42C5B04CDDC?id=15 5173&db=object&view=detail

This information gleaned from various interesting articles in the Ku-ring-gai Historical Society’s journal ’The Historian’