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Benchmark Publication Monday, 31 August 2020 Daily Civil Law A Daily Bulletin listing Decisions of Superior Courts of Australia Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary (1 minute read) Commonwealth of Australia v Endresz, in the matter of Endresz (FCA) - bankruptcy - applicant sought sequestration order against respondent - application granted (B) Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (No 5) (FCA) - bias - patent - interlocutory application - first respondent sought proceeding's allocation to docket of 'different Judge of the Court' - application granted (I B C G) MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd (NSWSC) - security of payments - plaintiffs' challenge to adjudication determination failed (I B C G) Bengour Pty Ltd v Figtree (NSWSC) - possession - mortgage - defence struck out - summary judgment granted - execution of writ of possession stayed (I B C G) Bowman v Nambucca Shire Council (NSWSC) - negligence - ’slip and fall’ on ’boat ramp’ - defendant not liable (B C I G) Re Topcu; Tampus v Canipek (VSC) - wills and estates - application for revocation of grant of probate - application granted (B) Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) (WASC) - damages - negligence - plaintiff suffering mesothelioma due to exposure to asbestos - defendant admitted Page 1 liability - damages assessed in amount of $1,041,480. (B C I G) Summaries With Link (Five Minute Read) Commonwealth of Australia v Endresz, in the matter of Endresz [2020] FCA 1228 Federal Court of Australia Gleeson J Bankruptcy - applicant, under s43 Bankruptcy Act 1966 (Cth), sought sequestration order against respondent - whether 'debt owing "in truth and reality"' - whether 'good reason' to doubt judgment debt's existence - Auckland Harbour Board v The King [1924] AC 318 - whether requirements for making sequestration orders satisfied - held: sequestration order made. Commonwealth of Australia (B) Vehicle Monitoring Systems Pty Limited v SARB Management Group Pty Ltd trading as Database Consultants Australia (No 5) [2020] FCA 1243 Federal Court of Australia Yates J Bias - patent - first respondent, by interlocutory application, sought proceeding's allocation to docket of 'different Judge of the Court' on basis of bias - SARB contended that given Yates J's findings in 'earlier patent infringement proceeding' between applicant and first respondent, a 'fair- minded lay observer might reasonably apprehend' Yates J 'might not bring an impartial mind to the resolution of some' questions in 'present proceeding' - held: application granted. Vehicle Monitoring (I B C G) MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147 Supreme Court of New South Wales Stevenson J Security of payments - plaintiffs were parties to construction contract with first defendant - adjudicator awarded amount to first defendant under Building and Construction Industry Security of Payment Act 1999 (NSW) - plaintiffs contended adjudication determination was erroneous - whether jurisdictional error - procedural fairness - whether adjudicator decided first defendant's claim on basis not 'advanced by either party' - claim that first defendant "did not carry out the work" - whether failure by adjudicator 'to come to a view or to consider the true merits of' first defendant's 'claims for modifications' - whether failure to by adjudicator to decide whether plaintiffs' set-off claim established - held: challenge to adjudication determination failed. View Decision (I B C G) Bengour Pty Ltd v Figtree [2020] NSWSC 1143 Supreme Court of New South Wales Wright J Possession - mortgage - plaintiff sought to strike out defendant's defence and possession of Page 2 'parcels of land' - whether to strike out defence - whether disclosure of 'reasonable defence' to claim - whether to grant summary judgment - whether to stay orders - rr13.1 & 14.28 Uniform Civil Procedure Rules 2005 (NSW) - held: defence struck out - summary judgment granted - execution of writ of possession stayed. View Decision (I B C G) Bowman v Nambucca Shire Council [2020] NSWSC 1121 Supreme Court of New South Wales Walton J Negligence - plaintiff sued defendant in negligence - claim arose from plaintiff’s ’slip and fall’ on ’boat ramp’ - ’risk of slippage’ - signage - recreational activity - risk of harm - obvious risk - whether breach of duty - whether failure to take precautions against risk of harm - whether factual causation - contributory negligence - ss5B, 5M, 5H, 5F, 5G & 42 Civil Liability Act 2002 (NSW) - held: defendant not liable. View Decision (B C I G) Re Topcu; Tampus v Canipek [2020] VSC 541 Supreme Court of Victoria McMillan J Wills and estates - probate - applicant sought revocation of 'grant of letters of administration to the plaintiff' - whether standing - whether delay reasonably explained - whether prima facie case - s45(1) Wills Act 1997 (Vic) - held: application granted. Re Topcu (B) Parkin v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2020] WASC 306 Supreme Court of Western Australia Le Miere J Damages - negligence - plaintiff suffering mesothelioma due to his exposure to ’asbestos- containing products’ which ’James Hardie Industries’ manufactured - defendant inherited ’relevant liabilities’ - defendant admitted liability - assessment of damages - held: damages assessed in amount of $1,041,480. Parkin (B C I G) Click Here to access our Benchmark Search Engine Page 3 Powered by TCPDF (www.tcpdf.org).
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