7 Wentworth Selborne

Last month, the Federal Court of Australia (Burley J) delivered judgment in Cargill, Incorporated v Cargill Financial Services International Pty Ltd [2024] FCA 604. The proceeding was the first of its kind in which a solicitor for the plaintiff was authorised to change the ASIC record of a rogue defendant. Quintin Rares appeared with Lindsay Muir instructed by Holding Redlich on behalf of the successful plaintiffs. A copy of the judgment is here: https://lnkd.in/gs83WgMb

Yesterday, the Court of Appeal (Meagher JA, Leeming JA, and Preston CJ of LEC) delivered judgment in Lahoud v Willoughby City Council [2024] NSWCA 163. The proceeding concerned an appeal from a judicial review challenge to the validity of a development consent granted for the adaptive reuse of an existing commercial building in Northbridge. Adrian Galasso SC appeared with Harrison Grace instructed by Mills Oakley who successfully had the appeal dismissed on all grounds. A copy of the judgment is available here: https://lnkd.in/gpazd-9B

The Design and Building Practitioners Act 2020 (NSW) was and is a significant piece of reforming legislation in the area of construction and building law. The body of case law concerning the Act’s interpretation is still very much emerging. This morning, Waugh SC DCJ delivered judgment in The Owners – Strata Plan 80867 v Da Silva [2024] NSWDC 263. The judgment adds to the growing body of judicial consideration of the Act. Significant, his Honour found, among other things, that the defendant, a tiling and waterproofing contractor, breached the statutory duty of care established by the Act, and owed to the Owners’ Corporation, by failing to perform tiling and waterproofing works in accordance with the Building Code of Australia and the relevant Australian Standards. His Honour found that the plaintiff was thereby entitled to damages equivalent to the harm caused by the defendant’s negligence. William Marshall appeared for the plaintiff, instructed by Helen Kowal and Jennifer Hold of Swaab. 

In In the matter Platypus Impact Housing Australia Limited [2024] NSWSC 753, the Supreme Court of New South Wales (McGrath J) set aside a statutory demand issued by a former director against a company in respect of a loan to the company in circumstances where the director was alleged to have separately taken valuable benefits for himself in connection with his role as a director of the company in breach of his fiduciary duties (the “no profit” rule) and section 183 of the Corporations Act 2001 (Cth), which the company alleged gave rise to an offsetting claim.   The defendant, Mr Elsegood, had been director of the plaintiff property development company, PIHA, while it was pursuing a valuable development opportunity in Queensland. As a director, Mr Elsegood had been introduced to that opportunity and did work for PIHA in pursuing it. He also loaned $200,000 to the company to enable it to pursue the development. He later resigned as a director.    PIHA ultimately did not obtain the development opportunity after certain contracts it had in place were terminated by the vendor. The opportunity was then taken up by a different company, and Mr Elsegood then obtained shares in that company and (PIHA alleged) other benefits in connection with the development.   The Court held that neither Mr Elsegood’s resignation as a director nor the fact that PIHA ultimately did not (or even could not) have taken the opportunity for itself could absolve Mr Elsegood from possible liability under the offsetting claim. Further, and though the offsetting claim was essentially in respect of gains made by Mr Elsegood (including, potentially, an account of profits) there was sufficient evidence that enabled the offsetting claim to be quantified above the amount of the statutory demand. The Court further held that PIHA could rely upon evidence adduced outside the 21-day period for the purpose of quantifying its offsetting claim without offending the oft-cited “Graywinter principle”.    Eli Ball appeared unled for the successful plaintiff, PIHA, instructed by McLachlan Thorpe Partners.   A copy of the judgment is available here: https://lnkd.in/gsn_dDjN

Chambers congratulates Jeremy Giles SC who has again been recognised as a 'leading' silk in Doyle's Guide's latest rankings of New South Wales ‘Commercial Litigation & Dispute Resolution’ senior counsel.

In G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 14) [2024] NSWSC 747, the Supreme Court of New South Wales (Stevenson J) gave the deponents of affidavits verifying discovery a choice: either depose further affidavits addressing various concerns arising from discovery or face cross-examination. Eli Ball appeared unled for the successful applicant, MACH Energy Australia. The circumstances in which the Court will “go behind” an affidavit verifying discovery are narrow, and were summarised by the Court following “comprehensive and very helpful” submissions provided by Mr Ball, as follows. First, if it can be shown (from the pleadings, the verifying affidavit, or some other source) that there are reasonable grounds for being fairly certain that there are other relevant documents which have not been discovered. Secondly, if it can be shown that the discovering party has misconceived its obligation of discovery, in which case it is not necessary to infer the existence of other relevant documents. And thirdly, if the Court in its discretion considers it otherwise necessary for such cross-examination to occur. Though such discretion should be exercised with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) in mind, including the goal of avoiding the process of discovery becoming unduly onerous. As to this point, it should be noted that cross-examination provides a tool for finally disposing of issues. A copy of the judgments is available here: https://lnkd.in/g8-KqkY4

Today, the Court of Appeal (Payne and Stern JJA) delivered judgment in McGettigan v Coulter [2024] NSWCA 148.   The Court of Appeal has considered the question of whether leave is required to appeal from orders under the Vexatious Proceedings Act 2008 (NSW) on the sole basis that they are interlocutory and so fall under s101(2)(e) of the Supreme Court Act 1970 (NSW).    The Court of Appeal has confirmed, notwithstanding the recent judgment of the Federal Court of Australiain Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884 and its application of the doctrine of issue estoppel to such orders, that they are interlocutory for the purposes of the leave to appeal requirements under the Supreme Court Act 1970 (NSW).   Sebastian Hanscomb appeared with Justin Brown (13 Wentworth Selborne). Sebastian addressed the Court on the question of whether leave was required at all having regard to the recent developments in the Federal Court.   A copy of the judgment is available here: https://lnkd.in/gTAeKKtr

Chambers congratulates Stephen Puttick, who has recently assumed co-editing of Trade Practices Law Competition & Consumer Law, a leading practitioner service on the statutory and common law regulation of competition and consumer law. The commentary is co-edited with Ruth Higgins SC and published by Thomson Reuters.

Chambers is pleased to welcome Lindsay Muir and Sasha Steinhoff as our new readers. Lindsay joins 7 Wentworth Selborne from Herbert Smith Freehills, where she was a Senior Associate in its Disputes team. Her practice included class actions, public and administrative law, competition law, contractual disputes, and regulatory investigations. Before that, Lindsay was an A/Senior Federal Prosecutor at the Office of the Commonwealth Director of Public Prosecutions and an Associate at a boutique law firm in Sydney. She has a Juris Doctor from the University of New South Wales and a Bachelor of Veterinary Science from the University of Sydney. Sasha joins 7 Wentworth Selborne from Corrs Chambers Westgarth, where she was a Senior Associate. Sasha was previously an Associate at Ashurst, where she worked on disputes across the District Court and Supreme Courts of New South Wales, Western Australia and Victoria, the Federal Court of Australia, and Royal Commissions and Special Inquiries. Sasha’s commercial practice includes Banking and Financial Services, Consumer Law, and Corporations Law. Sasha has held previous positions as the Commercial List Researcher to the Honourable Justice David Hammerschlag and Tipstaff to the Honourable Acting Justice Ronald Sackville AO at the Supreme Court of New South Wales. Sasha holds a Bachelor of Laws (Honours) and a Bachelor of Arts (Media) from Macquarie University.

Last month, the New South Wales Court of Appeal (Bell CJ, Leeming JA, and Basten AJA) dismissed the appeal in TMA Australia Pty Limited v 100% Bottling Company Pty Ltd [2024] NSWCA 80. The appeal was from a decision of the District Court of New South Wales (Newlinds DCJ) in a case concerning allegations that a contract had been formed as evidenced by emails which had various hallmarks of fabrication. The trial judge had dismissed the claim holding that, while not prepared to make a finding that the emails were fabricated, his Honour considered that the various difficulties surrounding the alleged existence of the emails and the plaintiff’s reliance upon them led him to the view that the plaintiff had not discharged the burden of proving on the balance of probabilities that the emails were actually sent. The Court of Appeal undertook an extensive review of the evidence (including the cross-examination of the plaintiff’s key witness) and held that this material supported the trial judge’s ultimate conclusion. The Court went further, however, and indicated that the trial judge’s conclusion tended “to understate the strength of the respondent’s case” below. Nick Kidd SC and Eli Ball appeared for the successful respondent on the appeal, while Mr Ball and Chantal Nguyen appeared at first instance for the successful defendant. In both proceedings, counsel were instructed by Russell Kennedy Lawyers.