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Benchmark Publication Tuesday, 19 June 2018 Daily Construction 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) 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 Liberal Party - 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 Click Here to access our Benchmark Search Engine Page 3 Powered by TCPDF (www.tcpdf.org).
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