Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186 (30 November 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/186.html
Sydney, Australia
1300 00 2088
Category Archives: LAW FIRM
91 Ourimbah Road, Mosman NSW 2088
Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186 (30 November 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/186.html
Sydney, Australia
1300 00 2088
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).
http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html
Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.
The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.
The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.
The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).
1300 00 2088
Bofinger v Kingsway Group Limited [2009] HCA 44
ON 13 OCTOBER 2009, the High Court of Australia delivered Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009).
The High Court held that guarantors of a secured loan may recoup contributions they made to the repayment of the loan to a first mortgagee from the remaining surplus securities before the surplus is applied to repay any second or subsequent mortgagee with security over the same property, even if the guarantors have also guaranteed the second or subsequent loans. The guarantors were found the be subrogated to the first mortgagee. Upon repayment of the first loan, first mortgagee had a fiduciary obligation to in good conscience provide the guarantors with the surplus funds and remaining properties.
On the principle of unjust enrichment and how it applies to subrogation, Gummow, Hayne, Heydon, Kiefel and Bell JJ said at [85]:
“The appeal to this Court in Friend v Brooker [63], which concerned the equitable doctrine of contribution, was correctly conducted on the footing that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. The same is true of the equitable doctrine of subrogation. The oral submissions for the Solicitors correctly recognised this.”
1300 00 2088
106 Bemont Road, Mosman NSW 2088
Quinn v Mosman Municipal Council [2009] NSWLEC 1392 (13 October 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/1392.html
Quinn v Mosman Municipal Council
Quinn v Mosman Municipal Council [2009] NSWLEC 1392 (13 October 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/1392.html
Cammeray Family Practice v Commercial Fitout Experts (General) [2009] NSWCTTT 527
Cammeray Family Practice v Commercial Fitout Experts (General) [2009] NSWCTTT 527 (21 September 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWCTTT/2009/527.html
1300 00 2088
Sim Kooi Soon v Malaysia Airlines System [2009] MYCA
Sim Kooi Soon v Malaysia Airlines System – NO: W-04-22-2005 [2009] MYCA 57 (11 September 2009).
http://www.commonlii.org/my/cases/MYCA/2009/57.html
1300 00 2088
Ames & Ames [2009] FamCA 825
A father obtained a paternity test of his son without obtaining the mother’s consent. The father had lied to the son about his reasons for taking the swab.
Justice Dawes found that the specimen had been obtained improperly and used her discretion under s138EA to refuse to admit into evidence the laboratory report because of the threat of the integrity of the process as well as the improper way in which the specimen had been obtained.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2009/825.html
Sydney, Australia
1300 00 2088
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).
http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html
In Aon Risk, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.
The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.
JL Holdings contains the often quoted passage regarding case management:
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.
The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.
The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.
French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.
1300 00 2088
Legal Helpdesk Lawyers 