Byrnes v Jokona Pty Ltd

[2002] FCA 41

CONTRACT – LEASE – lease of property for business venture – repudiation claimed – collateral contract claimed – estoppel claimed

LANDLORD AND TENANT – covenant for quiet enjoyment – express covenant – general principles – whether material interference with possession – activities of third party and of landlord – whether interference with possession interfered with commercial use of premises for the desired purposes such that business failed

TRADE PRACTICES – claim under Trade Practices Act that landlord failed to make available land surrounding leased premises for expansion of business

DAMAGES – assessment of damages for breach of lease – general principles – where argued business doomed to fail – where lease terminated before term – assessment of impact of interference and of lost future opportunity – calculation of interest

Date Heard:  31 January 2002

Decision: 31 January 2002

Judgment Allsop J

14 The affidavit material put forward on behalf of the applicants in places revealed a repetitive similarity. Important matters were expressed in similar language. The degree to which some lack of attention was paid, I think, to the seriousness of the task of giving evidence by affidavit was exhibited by the affidavits of Mr Taprell. He is barely able to read. Yet he was allowed to swear two affidavits. This matter came to the attention of those running the case. As a consequence he had his affidavits read to him before giving evidence. This state of affairs may have been brought about by the confluence of a number of factors. I am not seeking to lay blame or be unnecessarily critical. The preparation of written evidence that reflects the honestly held recollection of individuals, assisted by sensibly ordered and presented documentary and other background material, is a difficult task and one requiring experience and skill. However, I approach the majority of the affidavit material prepared on behalf of the applicants in this case with great caution.

Whung & Whung and Ors

[2011] FamCA 137 (4 March 2011)

FAMILY LAW – PROPERTY – Application for stay of proceedings – Forum non conveniens – Whether clearly inappropriate forum – Competing applications for anti-suit injunctions – Determination that local forum is not a clearly inappropriate forum – Determination to grant anti-suit injunctions – Relevant principles for each application considered and applied.

Date Heard: 7 December 2011

Date Delivered: 4 March 2012

Judgment: O’Reily J

269. I turn now to the evidence of the two Taiwanese lawyers.

270. O said:

3.6. If the Australian Court grants an injunction against [the husband], restraining him from continuing proceedings in Taiwan, the prospects of the Taiwanese Court enforcing that are not very good.

271. N said:

21. Australian law does not have the right to stop Taiwanese jurisdiction. Even if an Australian Court granted an order such as a stay or injunction, in my experience it is likely that the Taiwanese court would not recognise it because [the husband] and [the wife] are both citizens of Taiwan.

272. However, as the injunctions will be against persons who are litigants here, and not injunctions against the foreign court, this Court would have the power to deal with the husband and/or the third respondent in contempt if the injunctions were not abided.

273. On the basis of the matters I have considered, in relation to both anti-suit injunctions sought, I will grant them in the terms sought. Each is sought “until further order” and will be so prefaced. I will not second guess the reason for such. Argument was not addressed. In CSR, such matters were canvassed: CSR at 390, footnote [98]. However, as expressly the anti-suit injunctions were sought until further order and no argument was addressed to “permanent” anti-suit injunctions, I will order in the terms sought.

274. None of the parties suggested that the anti-suit injunctions, if granted, should be the subject of undertakings as to damages by the wife. It would appear that in relation to anti-suit injunctions granted upon the equitable basis that commencement or continuance of the restrained proceedings would be oppressive and/or vexatious, that there is nothing to be gained by the restrained proceedings and complete correspondence with the proceedings here, undertakings are not appropriate. Neither the husband nor the third respondent sought undertakings as to damages in argument. However, as the matter was not argued it would be appropriate for me, upon delivery of these reasons for judgment, but before pronouncing the orders, to invite argument on that aspect of the matter and I will do so

Welker & Ors v Rinehart & Anor

Since the decision of The High Court to lift suppression orders on the much publicised Rinehart case, I have had quite a few hits searching for Rinehart.

Here are the sequence of the cases, I did not find it particularly interesting due to the arguments were technical in nature (nit-picking), maybe you will find it more interesting.

1.   Welker & Ors v Rinehart [2011] NSWSC 1094 (13 September 2011)

2.   Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 (7 October 2011)

3.   Rinehart v Welker and Ors [2011] NSWCA 345 (31 October 2011)

4.   Rinehart v Welker [2011] NSWCA 425 (21 December 2011)

5.   Welker & Ors v Rinehart & Anor (No 4) [2011] NSWSC 1636 (22 December 2011)

6.   Rinehart v Welker [2012] NSWCA 1 (13 January 2012)

7.   Rinehart v Welker & Ors [2012] HCATrans 7 (1 February 2012)

8.   Welker & Ors v Rinehart & Anor (No 5) [2012] NSWSC 45 (2 February 2012)

9.   Rinehart v Welker & Ors [2012] HCATrans 10 (3 February 2012)

10. Rinehart v Welker & Ors [2012] HCATrans 11 (3 February 2012)

These are all concerning suppression orders alone, the real fight has not yet begun!

Enjoy!

Detective Senior Constable Wilkes v Abou-Yaghi

[2012] NSWDC 6

CONTRACT – Sale of goods – sale of car to rogue who sells to a third party – whether third party a bona fide purchaser without notice – whether sale of car to rogue a void or voidable transaction when the contract provides that property will not pass until the cheque has cleared

Hearing Dates: 24 and 25 January 2012

Decision Date: 3 February 2012

Judgment: Gibson DCJ

93. In Godfrey v Sevenoaks , the plaintiff accepted a cheque for a vehicle and allowed him possession of the car, whilst entering into an oral contract that no title to the car was to pass until the cheque was honoured. The Court of Appeal in Godfrey v Sevenoaks held that these conversations formed part of the transaction by which the rogue became possessed of the car, and it was a term of the contract that no title was to pass until the cheque offering payment was met. The Court of Appeal upheld the trial judge’s rejection of the argument that title, although voidable, passed to the defendant in such circumstances.

94. In Davey v Robinson’s Motors Pty Ltd at 58, Street CJ put the issue as follows:

“The question is whether that evidence is such as to outweigh the other clear evidence that the plaintiff, again in some muddled fashion, thought that he had protected himself by retaining title in himself throughout and only giving limited possession to Allen as a bailee.”

95. As Street CJ noted, the trial judge found that the plaintiff never intended to part with property or title in the car until after payment was received. While the belief that ownership could be retained was considered to amount to “muddled thinking” (at 58), once such a finding of fact was made, it became clear that “the plaintiff’s intention was to keep title in himself until he was paid” (at 59). While that in itself did not determine the matter, such a finding was sufficient to amount to evidence that ownership of the vehicle did not pass at the same time as possession.

96. The facts in the present case are considerably stronger than those in both these cases, as there was both a written contract to this effect and the registration papers withheld. The rogue, or his minions, had to go to the trouble of forging the registration papers in order to complete the transaction to the second respondent.

Strong v Woolworths Ltd

[2012] HCA 5

Negligence – Causation – Slip and fall injury – Absence of adequate system for periodic inspection and cleaning – Whether factual causation under s 5D of Civil Liability Act 2002(NSW) (“Act”) excludes notions of “material contribution” – Whether appellant had proved factual causation under s 5D(1)(a) of Act – Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104.

Decision Date:  7 March 2012

Judgment: French CJ, Gummow, Heydon, Crennan and Bell JJ

34.  Woolworths’ submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths’ negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v S E Dickens Pty Ltd[45]. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff’s fall[46]. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open[47]. The determination of the question turns on consideration of the probabilities.

Parras and Ors v Fai General Insurance Company Ltd (Prov Liq apptd)

[2001] NSWSC 1077

Contracts – Mode of acceptance

Santow J

29 As against fulfilling a condition precedent, there is inherently greater latitude when it comes to complying with a mode of acceptance laid down by the supposed offeror. Thus J W Carter and D J Harland “Contract Law in Australia” (Butterworths,1991) at 41-2:

“However, in most cases an offeror in indicating that acceptance may be made in a particular manner will not be taken to have insisted that that is the exclusive method of acceptance. In such cases any alternative method of acceptance which is as prompt as, and no less advantageous to the offeror than, the prescribed method will suffice.134 Therefore an offer requesting a reply ‘by return of post’ will normally be regarded as indicating merely a requirement of a prompt reply rather than as stipulating that acceptance must be by letter and no other means. Consequently a reply by telegram or by some other means, received no later than a letter by post would normally reach its destination, would comply with the terms of the offer.135 If an offeror wishes the prescribed method of acceptance to be the onlymethod permissible, this intention must be made quite clear. But if this is done, the direction is effective and any purported acceptance which does not comply is at best a counter offer, which the original offeror is then free either to accept or reject.136”