Monday, 31 August 2020

Daily Civil Law A Daily Bulletin listing Decisions of Superior Courts of

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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 () 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 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 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 ’’ 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)

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