Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144

BANKRUPTCY – validity of a bankruptcy notice electronically issued by the Official Receiver – whether essential requirement for final judgment/order to be attached at time of issue – whether judgment/order “attached” at time of electronic issue – meaning of “attached” – substantial versus strict compliance – whether defect in bankruptcy notice can be cured by s 306(1) of the Bankruptcy Act 1966(Cth) – appeal dismissed

Hasler v Singtel Optus Pty Ltd;Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494; (2014) 87 NSWLR 609; (2014) 101 ACSR 167

APPEAL - challenge to findings of fact - deference to trial judge

EQUITY - fiduciary duty - employee in position of conflict - accessory liability for knowing assistance in dishonest and fraudulent design - meaning of "dishonest and fraudulent design" - whether necessary to show knowledge of absence of informed consent - measure of equitable compensation

FRAUD - pleadings and course of trial - whether finding of dishonesty available

PRECEDENTS - departure from decision of another intermediate appellate court - where not necessary to do so in order to resolve appeal - where issue was important, causing inconsistent formulations of principle - precedential status of a decision which did not itself develop the common law but merely explained decision of High Court - comity

Tarrant and Australian Securities and Investments Commission [2013] AATA 926

CORPORATIONS LAW – banning order – failure to comply with a financial services law – failure to have reasonable basis for financial advice – failure to disclose information about remuneration – false or misleading statements in respect of financial products – misleading or deceptive conduct in respect of a financial product or service

CORPORATIONS LAW – banning order – length of banning order – no findings of fraud or dishonesty – contraventions serious and caused loss – applicant’s lack of insight into gravity of breaches – seven year banning order affirmed

PRACTICE AND PROCEDURE – government policy – ASIC Regulatory Guide – whether Tribunal must apply policy unless policy unlawful or there are cogent reasons to the contrary – Tribunal not precluded from giving no weight to policy in a particular case – policy found to be sensible and calibrated – policy applied by Tribunal 

Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156

JUDICIAL REVIEW - claim to prevent council selling land on basis that under Local Government Act 1993 it is classified as community land, which council has no power to sell - re land vested in council as at 1 July 1993, whether 1994 resolution classifying it as operational land beyond power because deemed to be community land under cl 6(2)(b) Sch 7 - whether presumption rebuttable and rebutted - whether advance public notice of 1994 resolution as required by s 34 - re land acquired by Council after 1 July 1993 by agreement as contemplated by local environmental plan and Land Acquisition (Just Terms compensation) Act 1919, whether 1998 resolution classifying it as operational land beyond power because inconsistent with terms of trust or instrument executed by transferor as provided in s 31(3)(b) - whether advance public notice of 1998 resolution as required by s 34 - whether resolutions invalid under Project Blue Sky principles - whether Council has defence under s 54 on basis of power to issue conclusive certificate as to classification given that s 53 land register records the subject land as operational - whether proceedings barred by time limitation in s 729 - whether relief should be refused in the Court's discretion.

Save Little Beach Manly Foreshore Incorporated v Manly Council [2013] NSWLEC 155

COSTS - security for costs - respondent moves for security for costs on eve of hearing of judicial review proceedings - motion dismissed for three reasons - first, Court has no power to order security for costs in judicial review proceedings except in exceptional circumstances and there are no exceptional circumstances - secondly, the proceedings were brought in the public interest - thirdly and alternatively, costs should be refused in the general discretion of the Court, having regard in particular to the fact that the proceedings involve a matter of public importance, the timing of motion and whether an order for security would stifle the proceedings.

In the matter of the Official Trustee in Bankruptcy as Trustee of the Bankrupt Estate of Carlos Antonio Pavez [2013] NSWSC 655

CONTRACT - Whether person, other than named party, is party to building contract - where builder entitled to call for evidence of title over which charge is to be granted - where multiple blocks in Site over which charge is to be granted, some owned by named contracting party and others owned by third parties and/or director of named party - whether debt owed by director, not named as party to the contract - whether monies paid into Court should be paid out to plaintiff as Official Trustee of the bankrupt estate of the director

 

Hallani v Hallani [2013] NSWSC 91

EQUITY - trusts and trustees - powers, duties, rights and liabilities of trustees - Defendant, an administrator of an intestate estate, was obliged to preserve the estate for the benefit of the deceased's widow and sons - Plaintiff-widow purportedly granted powers of attorney to the defendant to administer the deceased's estate - Defendant, without notice to the plaintiff, transmitted estate funds to Lebanon in the names of the deceased's sons in the practical control of their grandfather - Whether the powers of attorney were validly granted - Whether the terms of the powers of attorney authorised the defendant to transmit the disputed funds beyond the practical reach of the plaintiff and any representative of the deceased's estate.