Category Archives: Equity

Account of Profits, Damages, Equity, LAW FIRM, Patents, Unjust Enrichment

Dart Industries Inc v Decor Corporation Pty Ltd (“Lettuce Crisper case”) | 29 September 1993

September 29, 2014 Legal Helpdesk Lawyers

The majority was of the view that purpose of an account of profits is not to punish the defendant but to prevent their unjust enrichment.

Per Mason CJ, Deane, Dawson and Toohey JJ at 111:

Damages and an account of profits are alternative remedies ((6) See Neilson v. Betts (1871) LR 5 HL 1, at p.22; Lever v. Goodwin (1887) 36 ChD 1, at p.7; Patents Act 1990 (Cth), s.122(1).).
An account of profits was a form of relief granted by equity whereas damages were originally a purely common law remedy ((7) cf. Meagher, Gummow and Lehane, Equity: Doctrines and Remedies, 3rd ed. (1992), pp.659-660.). As Windeyer J pointed out in Colbeam Palmer Ltd. v. Stock Affiliates Pty. Ltd. ((8) [1968] HCA 50; (1968) 122 CLR 25, at p.34.), even now ((9) See Patents Act 1952 (Cth), s.118(1); Patents Act 1990 (Cth), s.122.) an account of profits retains its equitable characteristics in that a defendant is made to account for, and is then stripped of, profits which it has dishonestly made by the infringement and which it would be unconscionable for it to retain. An account of profits is confined to profits actually made, its purpose being not to punish the defendant but to prevent its unjust enrichment ((10) My Kinda Town Ltd. v. Soll (1983) RPC 15, at p.55; Potton Ltd. v. Yorkclose Ltd. (1989) 17 FSR 11, at pp.14, 15; Sheldon v. Metro-Goldwyn Pictures Corp. [1940] USSC 57; (1940) 309 US 390, at
p.399.). The ordinary requirement of the principles of unjust
enrichment that regard be paid to matters of substance rather than
technical form ((11) See Baltic Shipping Co. v. Dillon [1993] HCA 4; [1993] HCA 4; (1993) 176 CLR 344, at p.376.) is applicable.

Per McHugh J at 123:

The object of an account of profits is to make the infringer give up its gains in order to prevent its unjust enrichment. No element of punishment is involved.

Sydney, Australia

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Costs, Elder Law, Equity, LAW FIRM

Elderly widow awarded costs in pro bono litigation

September 24, 2014 Legal Helpdesk Lawyers

In the matter of Mainieri & Anor v Cirillo [2014] VSCA 227 (17 September 2014), the Victorian Court of Appeal awarded costs to the successful plaintiff who was represented on a pro bono basis.

Rita Cirillo sold her property and contributed the proceeds towards her son and daughter-in-law’s mortgage on the condition that she live with them indefinitely and that they take care of her. Her relationship with her son and daughter-in-law later broke down and it was not longer practical for her to remain living with them. When she sought repayment, her son and daughter-in-law alleged that the monies were an out and out gift.

The Court of Appeal held that Cirillo was entitled to an equitable lien or charge over the property to secure repayment with interest.

On the question of costs, there was a dispute over whether or not the Cirillo was entitled to costs as she was represented on a pro bono basis. The court held that the costs payable to her lawyers, Clayton Utz and Dr Glover, were payable under costs agreements that were contingent upon a costs order being made.

Sydney, Australia

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Equity, LAW FIRM, Property Law

Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) [2014] NSWSC 1257

September 15, 2014 Legal Helpdesk Lawyers

Commonwealth Bank of Australia v Iinvest Pty Ltd (In Liq) [2014] NSWSC 1257

Sydney, Australia

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Contract, Equity, LAW FIRM

Newey v Westpac Banking Corporation [2014] NSWCA 319

September 11, 2014 Legal Helpdesk Lawyers

Newey v Westpac Banking Corporation [2014] NSWCA 319 (11 September 2014).

Sydney, Australia

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Contract, Equity, Guarantee and Indemnity, LAW FIRM

Garcia v National Australia Bank Ltd [1998] HCA 48 | 6 August 1998

August 6, 2014 Legal Helpdesk Lawyers

ON 6 AUGUST 1998, the High Court of Australia delivered Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/48.html

The High Court considered its earlier decisions of Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 as well as the English decision of Barclays Bank Plc v O’Brien [1994] 1 AC 180.

Yerkey v Jones provides a special rule for married women who, regardless of other characteristics, voluntarily guarantee their husband’s loans. There are two limbs: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).

Commercial Bank of Australia Ltd v Amadio is the leading Australian case on unconscionability. Unconscionable dealings are defined as the “unconscientious use of a superior position to the detriment of a party who suffers some special disability or is or is in some special position of disadvantage” (Mason J at 461). Such dealings occur when “one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientous advantage is taken” ((Mason J at 462). In other words, entry into the contract must be caused by taking advantage of a special disability, not mere inequality or impaired judgment.

In Garcia, the High Court rejected the submission that the rule in Yerkey v Jones had been overruled by or subsumed in Amadio. The court at [34] per Gaudron, McHugh, Gummow and Hayne JJ reaffirmed Yerkey v Jones as being a separate rule of unconsciounability (1) applying to married women and not dependant on any presumption of undue influence by the husband over the wife or the husband as acting as agent for the creditor and (2) dependant on “the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect”.

Sydney, Australia

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Equity, Trade Practices

Seven Network Limited v News Limited [2007] FCA 1062 | 27 July 2007

July 27, 2014 Legal Helpdesk Lawyers

ON 27 JULY 2007, the Federal Court of Australia delivered Seven Network Limited v News Limited [2007] FCA 1062 (27 July 2007).

http://www.austlii.edu.au/au/cases/cth/FCA/2007/1062.html

The Seven Network Limited sued News Limited and others, including Foxtel Cable Television Pty Limited and PBL, alleging anti-competitive conduct including breaches of the Trade Practices Act 1974 (Cth) and the Broadcasting Services Act 1992 (Cth).

Seven claimed that the respondents had used anti-competitive conduct to secure the rights to broadcast certain sporting events.

Justice Sackville dismissed the claims.

The judgment is notable for Sackville J’s comments about the case being one of “mega-litigation” heard over 120 sitting days involving: over 85,000 documents comprising over 500,000 pages; submissions of over 1,500 pages; pleadings of over 100,000 pages; and a transcript of over 9,500 pages.

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Equity, Property Law, Taxation

Norman v Federal Commissioner of Taxation [1963] HCA 21 | 25 July 1963

July 25, 2014 Legal Helpdesk Lawyers

ON 25 JULY 1963, the High Court of Australia delivered Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9 (25 July 1963).

http://www.austlii.edu.au/au/cases/cth/HCA/1963/21.html

A husband had voluntarily assigned to his wife the right to company dividends and interest on a debt payable at will. The court held that the dividends and interest were future property not capable of being assigned for consideration and were therefore to be assessed as taxable income of the husband.

Assignment is “the immediate transfer of an existing proprietary right, vested or contingent, from the assignor to the assignee” per Windeyer J at 26.

Sydney, Australia

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Damages, Equity, Injunctions

Chancery Amendment Act 1858 (UK) 1858 (“Lord Cairns’ Act “) | 28 June 1858

June 28, 2014 Legal Helpdesk Lawyers

ON 28 JUNE 1858, the UK Parliament enacted the Chancery Amendment Act 1858 (UK), also known as the Lord Cairns’ Act 1858.

The Act allowed the English and Irish equity courts to award damages. Until then, equity courts were limited to granting injunctions and specific performance. The Act also allowed the equity courts to call juries.

Sydney, Australia

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