Weekly Construction Law Review Selected from Our Daily Bulletins Covering Construction

Friday, 21 February 2020

Weekly Construction Law Review Selected from our Daily Bulletins covering Construction

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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)

Commissioner of Taxation v Scone Race Club Limited (FCAFC) - superannuation - taxation - employment - respondent not liable to pay 'superannuation guarantee charge' to jockeys - appeal dismissed

Australian Broadcasting Corporation v Kane (No 2) (FCA) - administrative law - constitutional law - criminal law - applicant challenged warrant issued to Agent of Australian Federal Police under s3E Crimes Act 1914 (Cth) - application dismissed

Super Vision Resources Ltd v AC Holdings Co Pty Ltd (NSWSC) - conveyancing - plaintiff sought to set aside second defendant’s sale of properties to first defendant under s37A Conveyancing Act 1919 (NSW) - proceedings dismissed

United Petroleum Australia Pty Ltd v Herbert Smith Freehills (VSCA) - retainer - solicitors' costs - costs - indemnity costs - leave to appeal in respect of 'fees proceeding' refused - appeals against costs orders dismissed

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport (QCA) - administrative law - refusal to grant declaration that Minister had adopted method of calculation incapable of satisfying requirement of s148(1)(a) Petroleum and Gas (Royalty) Regulation 2004 (Qld) - appeal dismissed

Georgopoulos & Anor v Normetals Pty Ltd (SASC) - conversion - thief stole appellants' items and sold items to respondent - appellants' conversion claim upheld against respondent - appeal

Page 1 against assessment of damages allowed

Cornwall v Jenkins as Trustee for the iSpin Family Trust (ACTCA) - negligence - appellant injured while participating in “aerial sling” 'fitness class' - respondent liable - appeal allowed

Malhi v Antonijevic (ACTSC) - negligence - transcript - claim arising from respondent's fall from taxi - Magistrate found in respondent's favour - error in transcript - appeal allowed

Summaries With Link (Five Minute Read)

Commissioner of Taxation v Scone Race Club Limited [2019] FCAFC 225 Full Court of the Federal Court of Australia Griffiths, Derrington & Steward JJ Superannuation - taxation - Court allowed respondent’s appeal against objection decision concerning assessments under Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) for 'relevant period' - primary judge found appellant erred in determining respondent was employer of jockeys during relevant period and liable to pay 'superannuation guarantee charge' under ss5 & 6 Superannuation Guarantee Charge Act 1992 (Cth) - primary judge found respondent was not jockeys' employer within meaning of s12(8)(a) SGA Act during relevant period - appellant appealed - held: appeal dismissed. Commissioner [From Benchmark Thursday, 20 February 2020]

Australian Broadcasting Corporation v Kane (No 2) [2020] FCA 133 Federal Court of Australia Abraham J Administrative law - constitutional law - criminal law - evidence - applicant challenged warrant issued to Agent of Australian Federal Police (AFP) - relief sought pursuant to s39B Judiciary Act 1903 (Cth) and s5 Administrative Decisions (Judicial Review) Act 1977 (Cth) - warrant issued under s3E Crimes Act 1914 (Cth) - warrant authorised search at applicant’s premises ’for certain evidential material’ - applicant contended s3E Crimes Act did not authorise issue of search warrant ’in circumstances that disproportionately burden the implied constitutional freedom of discussion of government and political matters’ - applicant also contended warrant did not comply with ss3E(1), 3E(5)(c) & 3E(5)(a) Crimes Act, that warrant misdescribed offences in ss73A(1) & 73A(2) Defence Act 1903 amounting to non-compliance with ss3E(1) & 3(5)(a) Crimes Act - applicant also contended that both AFP’s decision to seek warrant and Registrar’s decision to issue it were ’legally unreasonable’ - ’journalist privilege’ - s126K Evidence Act 1995 (Cth) - held: challenges to search warrant failed - application dismissed. Australian Broadcasting Corporation [From Benchmark Wednesday, 19 February 2020]

Page 2 Super Vision Resources Ltd v AC Holdings Co Pty Ltd [2020] NSWSC 65 Supreme Court of New South Wales Stevenson J Conveyancing - second defendant sold properties he owned to first defendant - plaintiff was ’prospective creditor’ of second defendant - plaintiff, under s37A Conveyancing Act 1919 (NSW), sought declarations second defendant’s sales of properties to first defendant were void on basis sales were alienations by second defendant with intention to defraud creditors - whether second defendant alienated interest in properties “with intent to defraud [his] creditors” - whether plaintiff “thereby prejudiced” and had standing to seek that transactions be set aside - whether first defendant was “purchaser in good faith” - held: second defendant admitted he alienated interest in properties “with intent to defraud [his] creditors” - plaintiff was not a “person thereby prejudiced” - first defendant was purchaser in good faith - proceedings dismissed. View Decision [From Benchmark Monday, 17 February 2020]

United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15 Court of Appeal of Victoria Whelan, McLeish & Niall JJA Retainer - solicitors' costs - costs - indemnity costs - respondent provided application with legal services - respondent sued applicant for 'outstanding professional fees' ('fees proceeding') - applicants sued respondent in negligence - respondent succeeded in each proceeding - applicant sought to appeal against judgment in fees proceeding on basis judge did not identify 'relevant retainer' - 'two potential retainers' (2014 retainer and 2016 retainer) - 2016 retainer not signed by clients - applicants also sought to appeal against 'special costs orders' - whether judge correctly found 2016 retainer was binding agreement - whether respondent precluded from recovery of costs because respondent 'acted for itself in the proceeding' - whether erroneous exercise of discretion to make orders for indemnity costs - Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 - held: leave to appeal in fees proceeding refused - appeals in relation to costs dismissed. United Petroleum [From Benchmark Thursday, 20 February 2020]

Australia Pacific LNG Pty Limited & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2020] QCA 15 Court of Appeal of Queensland Morrison & Philippides JJA; Mullins AJA Administrative law - first appellant obliged to pay royalty under Petroleum and Gas (Royalty) Regulation 2004 (Qld) (Regulation) - royalty assessed under s147C Regulation “at the rate of 10% of the wellhead value of the petroleum disposed of ... during a royalty return period” - first appellant sought decision from Minister concerning component under s148(1)(a) of Regulation

Page 3 of wellhead value of petroleum to be calculated - Minister gave decision, adopting “Netback Method of calculation - Minister's decision found invalid but primary judge refused first appellant's application for declaration Minister 'had adopted a method which was not capable of determining' what Regulation required - “the amount that the petroleum could reasonably be expected to realise if it was sold on a commercial basis” - held: appeal dismissed. Australia Pacific [From Benchmark Monday, 17 February 2020]

Georgopoulos & Anor v Normetals Pty Ltd [2020] SASC 18 Supreme Court of South Australia Lovell J Conversion - unknown thief broke into appellants' 'storage/work depot' and stole items - thief assumed identity of 'local builder' and sold items to respondent as 'scrap metal' - some property was located at 'scrap metal yard' of respondent but some property already 'sold or crushed' - appellants claimed conversion against respondent - respondent admitted receiving 'some but not all' items - Magistrate found for appellants and awarded damages in sum less than sought by appellants - appellants appealed against damages' quantum - respondent cross-appealed, alleged Magistrate had erred in finding respondent received all items - respondent also challenged damages' quantum - held: appellants' appeal against assessment of damages allowed - cross-appeal dismissed. Georgopoulos [From Benchmark Monday, 17 February 2020]

Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2 Court of Appeal of the Australian Capital Territory Burns & Loukas-Karlsson JJ; Crowe AJ Negligence - appellant injured while participating in “aerial sling” 'fitness class' - respondent ran fitness class and occupied premises - appellant sued respondent in negligence - primary judge gave judgment for respondent, finding evidence did not reveal breach of duty by respondent - appellant appealed - appellant 'in essence' submitted primary judge erred in finding no breach of care by respondent by failure to require appellant to use 'crash mat', and erred in alternative finding that any breach had not caused appellant's injuries - respondent conceded appellant's contention that primary judge had erred in 'assuming past economic loss' - held: breach of duty established - factual causation established - damages reduced by one third for contributory negligence - judgment for appellant in sum of $372,297.34. Cornwall [From Benchmark Friday, 21 February 2020]

Malhi v Antonijevic [2020] ACTSC 25 Supreme Court of the Australian Capital Territory Crowe AJ Negligence - transcript - Magistrate awarded respondent personal injury damages in claim

Page 4 arising from respondent's fall from taxi - appellant appealed - appellant contended there was error in transcript on which Magistrate had 'likely relied' - whether Magistrate decided case on basis of 'fundamental error in the transcript of evidence' - whether to determine other issues raised on appeal - held: appeal allowed. Malhi [From Benchmark Thursday, 20 February 2020]

Page 5 Bright is the Ring of Words By: Robert Louis Stevenson

Bright is the ring of words When the right man rings them, Fair the fall of songs When the singer sings them. Still they are carolled and said – On wings they are carried – After the singer is dead And the maker is buried.

Low as the singer lies In the field of heather, Songs of his fashion bring The swains together. And when the west is red With the sunset embers, The lover lingers and sings And the maid remembers.

https://en.wikipedia.org/wiki/Robert_Louis_Stevenson

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