Tuesday, 19 June 2018

Daily Construction A Daily Bulletin listing Decisions of Superior Courts of

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Alston v Cormack Foundation Pty Ltd (FCA) - trusts and trustees - corporations - express trust - eighth and ninth defendants held shares in first defendant on trust for - shares’ cancellation set aside - shares to be transferred to Liberal Party’s nominees - share register to be rectified

Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd (FCA) - costs - discontinuance - presumption that discontinuing party will pay other side’s costs not displaced - applicant to pay costs of discontinuance

Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (NSWSC) - pleadings - expert evidence - defendant granted leave to amend defence - plaintiff granted leave to serve expert evidence by certain date

UDP Holdings Pty Ltd v Esposito Holdings Pty Ltd & Ors (VSC) - arbitration - application to issue subpoenas to two persons for arbitration’s purposes - Court satisfied it was reasonable to issue subpoenas - application granted

PCCEF Pty Ltd v Geelong Football Club Ltd (No 2) (VSC) - costs - indemnity costs - plaintiff by summons sought to amend originating motion and re-open trial - summons dismissed - ‘disregard of uncontroversial legal principle’ - defendant granted special costs order

Ugarin Pty Limited v Lockyer Valley Regional Council (QCA) - planning and environment - administrative law - ‘rateable land’ - decision by Council that appellant’s land was in certain category - declarations refused that decision invalid - appeal dismissed

Page 1 Summaries With Link (Five Minute Read)

Alston v Cormack Foundation Pty Ltd [2018] FCA 895 Federal Court of Australia Beach J Trusts and trustees - corporations - express trust - plaintiffs were trustees of Liberal Party of Australia (Victorian Division) - proceedings concerned ‘asserted trust interests and breaches of trusts’ in relation to assets first defendant held, and shares in first defendant - whether first defendant acted only as trustee in respect of assets, holding them on trust for Liberal party - whether all shares in first defendant held on trust for Liberal Party - whether two-thirds of shares in first defendant were ‘from inception’ held on express trust for Liberal Party - whether eighth and ninth defendants, who were former directors and shareholders of first defendant, intended by undertakings to create trust over their shares - whether trust enforceable - nature of trust - whether breach of trust - classes of alleged breach - ‘causal chain’ - Neville Estates Ltd v Madden [1962] Ch 832 - rule against perpetuities - ‘wait and see’ approach - ss140(2), 175(1) & 258D Corporations Act 2001 (Cth) - s6 Perpetuities and Accumulations Act 1968 (Vic) held: eighth and ninth defendants held their shares on trust for Liberal Party - cancellation of shares to be set aside - shares to be transferred to Liberal Party’s nominees - register of members of first defendant to be rectified. Alston

Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 Federal Court of Australia Barker J Costs - discontinuance - applicant granted leave to discontinue proceedings - determination of costs - whether applicant should pay discontinuance’s costs - presumption created by r26.12(7) Federal Court Rules 2011 (Cth) that discontinuing party will pay other side’s costs - whether ‘good reason’ warranting that presumption be displaced - held: Court not satisfied that presumption was displaced - application to pay costs of discontinuance. Dalian

Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2018] NSWSC 887 Supreme Court of New South Wales Harrison J Pleadings - evidence - two applications - defendant sought to amend defence in proceedings - plaintiff sought to serve geneticist’s expert evidence - defendant accepted it would not be prejudiced if plaintiff’s application granted - ’overriding purpose’ - s56 Civil Procedure Act 2005 (NSW) - held: Court satisfied that amendments did not disadvantage plaintiff and that

Page 2 amendments clarified defendant’s position - application to amend defence granted - plaintiff granted leave to serve expert evidence by certain date. View Decision

UDP Holdings Pty Ltd v Esposito Holdings Pty Ltd & Ors [2018] VSC 316 Supreme Court of Victoria Croft J Arbitration - subpoena - arbitration concerned disputes in relation to business’s sale - applicant sought issue of subpoenas to two persons requiring their attendance for examination for arbitration’s purposes - application made pursuant to s23 International Arbitration Act 1974 (Cth) - whether issue of subpoenas reasonable - held: Court satisfied it was reasonable to issue the subpoenas to addressees - application granted. UDP

PCCEF Pty Ltd v Geelong Football Club Ltd (No 2) [2018] VSC 309 Supreme Court of Victoria Croft J Costs - plaintiff by summons sought to amend originating motion and reopen trial in order to adduce new evidence advancing rectification claim - Court had already delivered judgment in respect of originating motion and made final Orders - Court dismissed summons - whether to depart from usual order as to costs - whether defendant should be granted indemnity costs on basis summons brought ‘in disregard of clearly established law’ - distinction between ‘very weak’ cases and ‘hopeless’ cases - whether application unduly prolonged litigation - whether disregard of ‘uncontroversial legal principle - held: Court satisfied to make special costs order in defendant’s favour. PCCEF

Ugarin Pty Limited v Lockyer Valley Regional Council [2018] QCA 121 Court of Appeal of Queensland Sofronoff P, Philippides JA & Henry J Planning and environment - administrative law - appellant’s land was developed as shopping centre with supermarket - - appellant contended respondent’s adoption of ‘categories of rateable land’ was invalid, with result its decision that the land was in certain category was invalid - primary judge refused to make declarations sought by appellant - s94 Local Government Act 2009 (Qld) - reg 81 Local Government Regulation 2012 (Qld) - statutory interpretation - whether ‘actual approval’ of Land Use Codes by respondent’s resolution - held: no error in decision of primary judge - appeal dismissed. Ugarin

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