Commercial Law, LAW FIRM, Trusts

Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6

ON 4 MARCH 2015, the High Court of Australia delivered Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6 (4 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/6.html

The High Court allowed an appeal against a decision of the Victorian Court of Appeal, declaring that the respondent was not entitled to certain monies that were payable to a forest company (“the third appellant”) under Land Sale Contracts and a milling company (“the fourth appellant”) pursuant to a tree Sale Agreement. The Court held that the proceeds of the sale of at the timber and land scheme payable to the third and fourth respondent were not subject to an express trust in favour of the scheme of investors.

Lawyers

Sydney, Australia

1300 00 2088

Contract, LAW FIRM, Remedies, Restiution, Unjust Enrichment

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5 | 4 March 1987

ON THIS DAY IN 1987, the High Court of Australia delivered Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 (4 March 1987). http://www.austlii.edu.au/au/cases/cth/HCA/1987/5.html A builder was entitled to recover remuneration for building work done despite there being no written enforceable contract because the client had accepted the benefit and therefore was obliged under the doctrine of unjust enrichment or restitution to pay fair and just compensation for the benefit accrued.

Section 45 of the Builders Licensing Act 1971 (NSW) (which provided that a building contract is not enforceable unless in writing and signed) did not prevent a builder from bringing an action in quantum merit (“as much as he has earned”) for the work done and materials supplied.

A claim based upon quantum merit does not require there to be an implied contract. A claim in quantum meruit is based upon restitution or unjust enrichment.

Lawyers 1300 00 2088

Environmental Law, Local Government, Planning Law

Markakis v Mosman Council [2015] NSWLEC 1033

ON 3 MARCH 2015, the NSW Land and Environment Court delivered Markakis v Mosman Council [2015] NSWLEC 1033 (3 March 2015).

“DEVELOPMENT APPLICATION: two storey dwelling; inappropriate siting of dwelling on battle-axe site; inadequate landscaped area; impacts on adjoining dwellings; internal amenity; resolution of shared parts of site with adjoining property.”

http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2015/1033.html

The Court dismissed an appeal against a decision of Mosman Council to refuse a Development Application for a two storey dwelling at 103A Raglan Street, Mosman.

Lawyers

1300 00 2088

Civil procedure, Evidence, LAW FIRM

Jones v Dunkel [1959] HCA 8 | 3 March 1956

ON THIS DAY IN 1959, the High Court delivered Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959).

http://www.austlii.edu.au/au/cases/cth/HCA/1959/8.html

The unexplained failure of a party to use certain evidence may, in some circumstances, result in an inference that the evidence would not have assisted their case.

Lawyers

Sydney, Australia

1300 00 2088

Constitutional law, LAW FIRM

R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10 | 2 MARCH 1956

ON THIS DAY IN 1956, the High Court of Australia delivered R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10; (1956) 94 CLR 254 (2 March 1956).

http://www.austlii.edu.au/au/cases/cth/HCA/1956/10.html

The Commonwealth Court of Conciliation and Arbitration was established under the Conciliation and Arbitration Act 1904 (Cth). The court was vested it with federal executive powers under s51(xxv) of the Australian Constitution regarding “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. The court also exercised federal judicial jurisdiction and power as a court under Chapter III of the Constitution.

The High Court ruled that the Commonwealth Court of Conciliation and Arbitration was unconstitutional because it conferred non-judicial functions on a Chapter III court.

The decision confirmed the doctrine of separation of powers in the Constitution by the rule that it is unconstitutional for non-judicial power to be conferred on a Chapter III court.

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM

Hustler Magazine v Falwell 485 US 46 (1988) | 23 FEBRUARY 1988

ON THIS DAY IN 1988, the US Supreme Court delivered Hustler Magazine v Falwell 485 US 46 (1988).

https://supreme.justia.com/us/485/46/case.html

Per Rehnquist CJ at 485:

‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’

Lawyers

Sydney, Australia

1300 00 2088

https://supreme.justia.com/us/485/46/case.html

Per Rehnquist CJ at 485:

‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’

Lawyers

Sydney, Australia

1300 00 2088

Constitutional law, LAW FIRM, United States

Marbury v Madison 5 US 137 (1803) | 24 February 1803

ON THIS DAY IN 1803, the US Supreme Court delivered Marbury v Madison 5 US 137 (1803).

http://laws.lp.findlaw.com/getcase/us/vol/getcase/US/5/137.html

The Supreme Court of the United States held invalid legislation passed by Congress which purported to enlarge the original jurisdiction of the Supreme Court by authorising the issue of mandamus. The Court held that Congress had no power to give original jurisdiction to the Supreme Court in cases other than those described in Art III.

The decision is significant in that it sets the principle that the US Supreme Court has the ultimate power to review the validity of acts of Congress enacted in violation of the United States Constitution.

Lawyers

Sydney, Australia

1300 00 2088

Courts and Tribunals, Judges

Appointment of Justin Smith to the Federal Circuit Court of Australia

On 27 JANUARY 2015, Mr Justin Smith SC was appointed as a judge of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Smith graduated from the University of Sydney in 1991 with a Bachelor of Arts and Bachelor of Laws. He was admitted to practice in the Supreme Court of New South Wales in 1992 and was appointed Senior Counsel earlier this year.
Mr Smith’s primary areas of practice are administrative law (including migration, customs and taxation law), commercial and equity law, insolvency, succession and regulatory and disciplinary cases as well as varied appellate work. Mr Smith volunteered at Redfern Legal Centre between 1993 and 1997, where he provided free legal advice and took on pro bono matters both at trial and on appeal.”

Lawyers

Sydney, Australia

1300 00 2088

Courts and Tribunals, Judges

Appointment of Ian Newbrun to the Federal Circuit Court of Australia

ON 4 FEBRUARY 2015, Ian Newbrun was appointed as a judge of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Newbrun graduated with a Bachelor of Laws from the University of Sydney in 1979 and a Masters of Laws from the London School of Economics and Political Science in 1981. He was admitted to practice in the Supreme Court of New South Wales in 1982.
Mr Newbrun’s primary areas of practice are common law actions, will disputes, insurance law, contractual and other commercial disputes and administrative law. He is currently the New South Wales Chairperson of the Federal Medicare Participation Review Committee and a Deputy Chairperson of the New South Wales Health Profession Tribunals since 2012. He has been a panel advisor to the New South Wales Refugee Review Tribunal Legal Advice Scheme. Mr Newbrun is a qualified arbitrator hearing referred actions from the NSW Local and District Courts.”

Lawyers

Sydney, Australia

1300 00 2088

Courts and Tribunals, Judges

Appointment of Salvatore Vasta to the Federal Circuit Court of Australia

On 1 JANUARY 2015, Mr Salvatore Vasta was appointed as a member of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Vasta graduated from the University of Queensland with a Bachelor of Arts in 1984. He graduated from the Barrister’s Admission Board in 1990 and was admitted to practice in the Supreme Court of Queensland that same year. Mr Vasta was admitted to practice in the High Court of Australia in 2003.
Mr Vasta started his legal career as a legal officer in the Queensland Office of the Director of Public Prosecutions (ODPP) in 1990. During his career, he has been a Queensland Crown Prosecutor, Senior Crown Prosecutor and is the current Principal Crown Prosecutor at the Queensland ODPP.
Mr Vasta is a Member of the Bar Association of Queensland and is the Deputy Chairman of the Queensland Cricket Board. He is the Vice-President of the International Association of Prosecutors and the President of the Crown Prosecutors Association of Queensland.”

Lawyers

Sydney, Australia

1300 00 2088

Mosman Solicitor & Notary