Tag Archives: SYDNEY LAWYERS

Administrative Law, Banking and finance, Contribution and indemnity, Equity, LAW FIRM, Migration Law

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3

ON 11 FEBRUARY 2015, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html

On 22 June 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014), ordering that the Minister determine the plaintiff’s application for a permanent protection visa according to law.

In July 2014, the Minister refused to grant the plaintiff a permanent protection visa on that grounds that he was not satisfied that the grant of such a visa was “in the national interest” because the plaintiff was an unauthorised maritime arrival.

On 11 February 2015, in the most recent case, the High Court held that the Minister’s decision in July 2014 to not grant the visa was not according to law because under the Migration Act 1958 (Cth) the Minister could not refuse such an application just because the plaintiff was an unauthorised maritime arrival.

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Banking and finance, Contribution and indemnity, Equity, LAW FIRM

Lavin v Toppi [2015] HCA 4

ON 11 FEBRUARY 2015, the High Court of Australia delivered Lavin v Toppi [2015] HCA 4 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/4.html

The appellants and respondents were sureties who had guaranteed a consolidated loan with the National Australia Bank.

In 2010, NAB demanded repayment of the balance of the loan debts and brought proceedings against all of the guarantors. In settlement of proceedings against the appellants, NAB covenanted not to sue them for the guaranteed debt in return for the payment of a minor portion of the debt. The respondents then paid the disproportionately high balance of the debt and then brought proceedings against the appellants seeking the recovery of the amount they paid to NAB in excess of their proportionate share.

The appellants resisted the appellants claim, arguing that the appellants and respondents no longer had “coordinate liabilities” by reason of the debt only being enforceable against the respondents due to NAB’s covenant not to sue the appellants.

The NSW Supreme Court found in favour of the respondents and the Court of Appeal dismissed an appeal, holding that the respondents could still recover from the appellants because the covenant not to sue did not alter the liabilities between the appellants and respondents under the guarantee and therefore they still had “coordinate liabilities”.

The High Court dismissed an appeal by the appellants, holding the Court of Appeal to be correct in holding (1) that the covenant not to sue did not extinguish the appellants’ liability under the guarantee and (2) that the respondents had an equitable entitlement to contribution which could not be defeated by the covenant not to sue.

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Contract, Damages, LAW FIRM

Baltic Shipping Company v Dillon [1993] HCA 4 | 10 February 1993

ON THIS DAY IN 1993, the High Court of Australia delivered Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289; (1993) 67 ALJR 228 (10 February 1993).

http://www.austlii.edu.au/au/cases/cth/HCA/1993/4.html

As an exception to the rule that damages are not available for mental distress and disappointment arising from a breach of contract, such damages may be awarded if the contract in question contemplated the delivery of enjoyment, relaxation or peace of mind.

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Civil procedure, Dust Diseases, LAW FIRM, Personal Injury

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 | 9 February 2011

ON 9 FEBRUARY 2011, the High Court of Australia delivered British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011).

http://www.austlii.edu.au/au/cases/cth/HCA/2011/2.html

Lawyers

Sydney, Australia

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Administrative Law, Appeals, Criminal Law, Evidence, LAW FIRM, Occupational Health & Safety

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 | 3 FEBRUARY 2010

ON THIS DAY IN 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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LAW FIRM, Legislation

Liquor (Amendment) Act 1954 (NSW)

ON THIS DAY IN 1955, the “six o’clock swill” was abolished by the NSW Liquor (Amendment) Act 1954.

Click to access la1954n50214.pdf

Lawyers

Sydney, Australia

1300 00 2088

Environmental Law, LAW FIRM, Planning Law

Mosman Local Environmental Plan 2012

ON THIS DAY IN 2012, the Mosman Local Environmental Plan 2012 commenced.

Click to access mlep20122011647295.pdf

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Disability Law, Discrimination Law, LAW FIRM

Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36

ON THIS DAY IN 2013, the Federal Magistrates Court delivered Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (1 February 2013).

http://www.austlii.edu.au/au/cases/cth/FMCA/2013/36.html

The Commonwealth Disability Discrimination Commissioner successfully sued the Rail Corporation of NSW on the grounds that it failed to provide audible train announcements for the hearing impaired.

Lawyers

1300 00 2088

Criminal Law, Drink Driving, LAW FIRM

New Alcohol Interlock Laws

From 1 FEBRUARY 2015, new drink driving laws come into effect. It will be mandatory for courts to order drivers convicted of high range, repeat and other serious drink driving offences with a minimum license disqualification and a minimum 12 month participation in the alcohol interlock program.

For further information go to:

Lawyers

Sydney, Australia

1300 00 2088

Corporations Law, LAW FIRM

Sons of Gwalia Ltd v Margaretic [2007] HCA 1

ON THIS DAY IN 2007, the High Court of Australia delivered Sons of Gwalia Ltd v Margaretic [2007] HCA 1; (2007) 232 ALR 232; (2007) 81 ALJR 525 (31 January 2007).

Section 563A of the Corporations Act 2001 (Cth) provided:

“Payment of a debt owed by a company to a person in the person’s capacity as a member of the company, whether by way of dividends, profits or otherwise, is to be postponed until all debts owed to, or claims made by, persons otherwise than as members of the company have been satisfied.”

The High Court held that s563A of the Corporations Act 2001 (Cth) did not apply to shareholders making a claim for damages for losses suffered as a result of the company’s wrongdoing when acquiring the shares as such claims are not owed to the shareholder in their capacity as a member of the company. Accordingly, a claim by Mr Margaretic for losses arising from being misled in the acquisition of his shares before the company went into administration were to be treated as debts under s553 of the Act and ranked equally with the claims of other creditors.

Parliament has since amended the Corporations Act 2001 (Cth) by the passage of the Corporations (Sons of Gwalia) Act 2010. In general terms, the effect of the amendment is that (1) share ownership does not preclude a claim against the insolvent company but payment shareholder claims relating to share dealings is to be postponed until the payment of all other debts and (2) a person whose claim has been postponed is entitled to receive documents relating to the insolvency and in some cases, with the permission of the court, vote at meetings regarding the conduct of the administration.

http://www.austlii.edu.au/au/cases/cth/HCA/2007/1.html

Lawyers

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