Fair Work Ombudsman v Hu  FCAFC 133, 16 August 2019
Philip Tucker appeared for the successful respondents to an appeal in respect of alleged accessory liability. The appeal concerned the proper construction of the Horticulture Award 2010, whether the respondents were knowingly concerned in admitted contraventions of the Fair Work Act 2009 (Cth) by a labour hire company, and the application of Jones v Dunkel and Blatch v Archer to inferences to be drawn from existing evidence.
Prider v Bond University Limited  QSC 197, Bowskill J, 25 July 2019
Melanie Hindman QC led Simon Eggins for the University in this application for the determination of separate questions. In the proceeding, the plaintiff claims both contractual relief and relief for misleading and deceptive conduct under the Australian Consumer Law. The two identified questions of law related to the contract claim and the misleading and deceptive conduct claim, in the circumstances where there was factual overlap between the proceeding and a separate proceeding in the Federal Court commenced by the plaintiff against the defendant. The Court considered whether it is just and convenient for the Court to determine the identified questions separately and before any trial.
Carter-Lannstrom & Anor v Gray & Anor  QSC 169, 16 July 2019
Philp Tucker appeared for the successful applicants in an application for summary judgment against defendants who had given a guarantee under a loan in respect of which the principal debtor had defaulted.
Pearson v State of Queensland – known as the “Stolen Wages” class action
In this long-running class action being managed in the Federal Court Andrew Crowe QC has led a team consisting of the following barristers: Chris Murdoch QC; Geraldine Dann; Chris Curtis; Ed Shorten; Max Walker and Nikki A-Khavari.
The class totals approximately 10,000 Aboriginals and Torres Strait Islanders who were subject to a series of Protection Acts, relevantly, from 1939-1972 under which wages were controlled by the State. The various claims brought arose out of allegations as to how the State managed this legislative scheme and in respect of how it managed a reparations scheme which commenced in 2002 under which approximately $55m was paid to those whose wages had been controlled under the Protection Acts.
On 9 July 2019 the parties announced that they had reached an in principle settlement with the State agreeing to pay $190m.
The settlement is subject to the parties reaching agreement as to a distribution scheme allocating the net settlement sum (after costs and litigation funder’s commission).
The settlement is also subject to the Federal Court’s approval.
Re Pleash; in the matter of Equititrust Limited (in Liquidation) (Receiver Appointed)  FCA 1063 Jagot J, 9 July 2019
Philippa Ahern acted for the Court-appointed receiver of the property of a managed investment scheme. The liquidator of the scheme’s responsible entity applied to the Federal Court in Sydney for judicial advice in relation to the proposed settlement of litigation against the scheme’s auditor. Jagot J approved the entry into the deed of settlement and made the directions sought.
Russells (A Firm) v Donoghue,  FCCA 1864, 4 July 2019
Peter Somers acted for the petitioning creditor in a bankruptcy matter that was opposed on the grounds the Court did not have jurisdiction under section 43 of the Bankruptcy Act 1966. The respondent had been absent from Australia for approximately five years prior to the date of the act of bankruptcy. The Court held it did have jurisdiction as the respondent had a place of business in Australia and was continuing to carry on business in Australia, and made the sequestration order.
Jawhite v Trabme & Ors  QCA 007, 14 June 2019
Philip Tucker led Nathan Shaw in a successful appeal following a trial in an oppression proceeding that concerned the merger of independent real estate businesses into a single business that had passed into receivership. In consequence of the appeal, money orders, an order for the provision of lending security and costs orders made against the appellants were set aside.
Williams v Nathan  QSC 127, Boddice J, 23 May 2019
Andrew Crowe QC led Liam Copley for the plaintiff in a dispute between the directors/shareholders of an incorporated legal practice. Prior to trial the company had been wound up on the just and equitable ground. The two directors each held 50% of the shares in the company. The plaintiff alleged that agreement had been reached as to the allocation of expenses and profit based on the directors respective contributions to goodwill from their separate geographical office locations. The plaintiff alleged that the agreement gave rise to a constructive trust in his favour reflecting this agreement. This was accepted by Boddice J. The liquidator for the company contended that the agreement operated to frustrate the effect of s.117 of the Legal Profession Act in that the operation of separate practices under the one corporate entity meant that each director did not have oversight of the other’s practice. This contention was rejected by Boddice J also holding that even if a contravention had been established it was not a case where the form of contract was prohibited by the Legal Profession Act.
In the Estate of Edward Steven Middleton (deceased)  QSC 128, 23 May 2019
Mark Steele acted for the beneficiary of a will made in 2013. The applicant was the daughter of the deceased who had been a beneficiary under an earlier will, but not the later will. The applicant sought orders revoking the later will and declaring the earlier will to be the valid will of the deceased. Boddice J found that the later will had been revoked by destruction, but that the earlier will had not been revived. His Honour found that the deceased died intestate.
Trilogy Funds Management Ltd as RE of the LM Wholesale First Mortgage Income Fund & Anor v The Members of the LM Wholesale First Mortgage Income Fund  QSC 126, 22 May 2019
Philippa Ahern acted for the responsible entity and custodian of the property of a managed investment scheme, who applied to the Supreme Court pursuant to s.96 of the Trusts Act 1973 (Qld) for directions that they were justified in entering into and implementing a deed of settlement.
The applicants had been sued to recover amounts that were alleged to have been paid either without power, or in breach of trust. Certain parties to the proceeding entered into a deed of settlement following a three-day mediation conducted by the Hon. Richard Chesterman QC. It was a condition precedent to the deed coming into effect that the parties to the settlement obtain directions from the Supreme Court that they were justified in entering into and implementing the proposed deed of settlement. Mullins J heard three such applications brought by the parties to the settlement, and made the directions sought by each party.
Australian Securities and Investments Commission v Goldsky Global Access Fund Pty Ltd  QSC 114, 9 May 2019
Mark Steele acted for the Australian Securities and Investments Commission (ASIC) in an application for declarations that various companies had contravened section 911A of the Corporations Act 2001 (Cth), by carrying on a financial services business without holding an Australian Financial Services Licence. The three related companies had operated a custodial or depository service in relation to investor funds totalling several million dollars over a period ranging from early 2017 to late 2018.
Flanagan J made the declarations sought by ASIC.
Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Limited as trustee for the Pro-Invest Australian Hospitality Opportunity (BRF Springhill) Trust  QSC 108, 9 May 2018
Mark Steele led Brent Reading in an application for an interim injunction and interlocutory injunction restraining the call on a security. The application was heard over a number of days in early April 2019.
Martin J granted the interim injunction, and extended that order from the dates of the hearing in early April until delivery of reasons in May 2019. In relation to the interlocutory injunction, his Honour found that there was a serious question about whether the respondent had complied with contractual provisions relating to the right to call on the security. His Honour otherwise dismissed the application on the basis that the balance of convenience favoured the respondent.
Jones v Aussie Networks Pty Ltd  QSC 111, 3 May 2019
Peter Somers successfully acted for defendants, who in an earlier decision had defeated claims for defamation, injurious falsehood and misleading and deceptive conduct, in apply for costs orders against a non-party, whom the Court found stood to benefit from the unsuccessful claim, was heavily involved in the conduct and control of the proceeding for the plaintiffs, who took the dominant role in attempts to resolve the action, and was probably funding the litigation.
Delta Pty Ltd v Mechanical and Construction Insurance Pty Ltd  QCA 62, 12 April 2019
Savage QC leading Stephen Lumb acted for the Respondent in this appeal which concerned standard clauses in construction insurance contracts. In this case the plaintiff insurer claimed both pursuant to its right of subrogation and as assignee of the right of the insured. The Court of Appeal in upholding the judgment of the trial Judge dismissing the appellant’s claim at first instance held that the insured was not “legally liable” for losses against which the insured indemnity was sought to be recovered. In any event the settlement was not proved to be reasonable and so could not be recovered under the right of subrogation.
The judgment deals with the effect of a so called “Damron Assignment” on an insured’s entitlements.
McDonald Keen Group Pty Ltd (in liquidation) (receivers and managers appointed) v State of Queensland  QSC 94, Burns J, 10 April 2019
Melanie Hindman QC leading Fiona Lubett acted for the State of Queensland in this application for summary judgment against the plaintiff in respect of debt and damages claims brought in relation to a claimed contractual right to payment of two progress claims made under a construction contract. The court found that the absence of a payment certificate in respect of either of the progress claims was an incurable flaw in the plaintiff’s debt and damages claims advanced. The plaintiff had no real prospect of succeeding on that part of its claims and there was no need for a trial of that part of the claim. Summary judgment was awarded to the defendant in respect of those parts of its claims. Other parts of the plaintiff’s claim will continue to proceed to trial in the usual way.
The Trust Company (Australia) Ltd atf the WH Buranda Trust v Icon Co (Qld) Pty Ltd & Anor  QSC 87, Applegarth J, 4 April 2019
Brent Reading appeared for the applicant in a proceeding to declare void the decision of an adjudicator made pursuant to the Building and Construction Industry Payments Act 2004 (BCIPA). The case concerned whether a payment claim had been validly served in accordance with the contract between the parties and therefore BCIPA. The judgment (of Justice Applegarth) examines the requirements for service under BCIPA and also the interpretation of notice clauses within an EPC contract. The case confirms existing authority to the effect that valid service of a payment claim is an essential precondition to an adjudicator’s jurisdiction under BCIPA.
Chhabra v McPherson as Trustee for the McPherson Practice Trust (No.2)  FCA 448, Yates J, 3 April 2019
On 14 November 2018 the trial judge dismissed the applicant’s amended originating application after a trial in which Andrew Crowe QC with Ben Gardiner appeared for the respondents. The respondents, relying on a written open offer made on 4 May 2017 sought costs on the indemnity basis from that date. That offer offered undertakings and a payment of $40,000. At - Yates J discussed the relevant principles, concluding at  that the applicant’s failure to accept the offer was, in the circumstances, unreasonable. Accordingly, costs were ordered on the indemnity basis from the date of the offer.
J.Mac Constructions Pty Ltd v Queensland Building and Construction Commission  QCAT, Dr Collier (member), 25 February 2019
Melanie Hindman QC and Philip Tucker acted for the successful applicant in this proceeding in relation to two preliminary questions arising in a review application. The review application concerned the exclusion of the applicant from holding a building licence by reason of one of the applicant’s directors having been a company secretary of another company at the time of its winding up. The preliminary questions dealt with two important statutory construction issues. First, is there a ‘relevant company event’ for the purposes of s. 56AC(2) of the QBCC Act 1991 in circumstances where a solvent company is placed into liquidation. Second, which version of s. 56AC(2) applies in circumstances of a change in the legislative scheme having been effected on 1 July 2015. The effect of the decision will be that the applicant, and certain related persons, will retain their building licences.
Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor  QSC 91, Ryan J, 18 February 2019 (ex tempore)
Kylie Downes QC (for the applicant) and Melanie Hindman QC (for the first respondent) appeared against each other (with their respective juniors) in this application concerning whether compliance with s. 21(5) of the Building and Construction Industry Payments Act 2004, which requires service of the adjudication application upon the respondent as soon as possible after the application is lodged with the registrar, is required for a valid adjudication decision. The court held that “While there is some flexibility in the requirement of “as soon as possible”, in my view, in the context of an Act which imposes brutally fast timeframes, service 12 business days after the lodging of an adjudication application is not as soon as possible”. The consequence in the facts of this case was that the court found that the adjudicator had not erred in declining jurisdiction in the claims referred to him.
Fulton Hogan Construction Pty Ltd v QH & M Birt Pty Ltd  QSC 23, Ryan J, 15 February 2019
Melanie Hindman QC led Maxwell Walker for the respondent to an application to overturn the decision of an adjudicator under the Building and Construction Industry Payments Act 2004. The applicant, a contractor, had engaged the respondent on a subcontract to undertake earthworks for the construction of a dam in North Western Queensland. The case considered the important role of payment claims in limiting the matters that adjudicators can determine, the effect of particular types of errors on the validity of adjudications and the adequacy of reasons.
Citigroup Pty Limited v Burchard  QDC 23, Porter QC DCJ, 14 February 2019
Brent Reading appeared for the successful respondent in this proceeding in relation to an application to set aside default judgment and an enforcement warrant
Jawhite Pty Ltd & Anor v Trabme Pty Ltd & Ors  QCA 7, Sofronoff P and Morrison and McMurdo JJA, 1 February 2019
Philip Tucker led Nathan Shaw for the appellants in a successful appeal against orders made for payment of monies, provision of a loan and provision of security to a bank in support of credit facilities, following a lengthy trial concerning an internal dispute within a real estate agency business and allegations of oppressive conduct.
Monadelphous Engineering Pty Ltd v Acciona Agua Australia Pty Ltd & Anor  QSC 310, Douglas J, 20 December 2018
Melanie Hindman QC led Hamish Clift successfully defeating a challenge to an adjudication decision made under the Building and Construction Industry Payments Act 2004 (Qld). The issue concerned whether the nature of the arrangements between the parties, governed in part by a collaboration deed, meant that the construction contract was of a type to which the Act did not apply. An appeal by the unsuccessful applicant has since been withdrawn.
Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106 957  QDC 275
Andrew Crowe QC led Philip Tucker for the plaintiff in a complex body corporate levy recovery action that involved interpretation of the Mixed Use Development Act 1993 (Qld), whether that Act gave rise to fiduciary or trustee obligations that might be relied upon in defence of a claim for recovery of outstanding levies, and whether the mechanisms provided under Part 5 of the Building Units and Group Titles Act 1980 (Qld) limited the defences available to a claim by a body corporate for outstanding levies.
Livingstone Shire Council v EarthTEC Pty Ltd  QSC 271, Lyons SJA, 21 November 2018
Mark Steele appeared for the respondent on an application relating to the intersection of the Building and Construction Industry Payments Act 2004 (BCIP Act) and the Subcontractors Charges Act 1974 (the Charges Act). The applicant alleged that a decision made by an adjudicator under the BCIP Act regime was void by reason of jurisdictional error in that the adjudicator had erred in his construction of s 26(2) of the BCIP Act which section he had construed as prohibiting him from considering that amounts paid into Court in satisfaction of notices of charge under the Charges Act should be taken into account. The Court held that an adjudicator is not precluded by s 26(2) from considering a properly made submission by a respondent to an adjudication application that liability to an application is discharged by s 11(6) of the Charges Act. The error was a jurisdictional error.
Chhabra v McPherson  FCA 1755, Yates J, 14 November 2018
Andrew Crowe QC leading Ben Gardiner appeared for the respondents. The applicants and respondents had been partners in a legal practice – Kaden Boriss, operating under that name in different geographical locations. The applicants had traded under that name before entering into an arrangement whereby the respondents, were licensed to use the name and associated logos. The applicants purported to terminate the licence on no notice. The applicants alleged passing off, misleading or deceptive conduct and copyright infringement. The applicants failed on all claims. An appeal has been filed.
Newlinx Pty Ltd v Domain Gray Pty Ltd  QSC 256, Atkinson J, 9 November 2018
David de Jersey appeared for a respondent being the liquidator of Bargara Property Developments Pty Ltd (in liquidation). On 16 September 2016 Peter Lyons J had ordered summary judgment for the first, second and third defendants (“the defendants”) against the plaintiffs and had dismissed the plaintiffs claim against the fourth defendant and the fourth defendant’s counterclaim against the second plaintiff. He ordered that the plaintiff pay the defendants’ costs of the application and the action. The defendants sought an order that the respondents who were not parties to the substantive proceeding pay the costs the subject of the order made by Peter Lyons J. The other respondents were directors and shareholders of the first plaintiff. The decision refers to Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 190, 192-193. The application against the liquidator was made on the basis that as such he was interested in the outcome of the litigation pursuant to a Deed of Assignment between the first and second plaintiffs. Taking into account all of the circumstances (set out in detail in the reasons) it was determined that on balance the interests of justice did not favour the making of such a costs order “particularly given the exceptional nature of such an order”. The applications for non-party costs against the other respondents were also dismissed.
Noosa Chocolate Factory
The Noosa Chocolate Factory operates from two stores in Adelaide Street, Brisbane selling chocolates. The business was operated by a family but a dispute arose between the mother and her son which found its way to the Federal Court. Fortunately the dispute was settled and a trial set down for December 2018 did not proceed. Members of chambers played a central role in resolving the dispute with one acting on a pro bono basis as mediator and two other members acting on a pro bono basis for the son.
Ham v Tax Practitioners Board  FCA 1652, Logan J, 2 November 2018
Douglas Savage QC led Craig Coulsen on an appeal to the Federal Court on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975. Mr Ham an accountant, was subject to a decision of the Professional Misconduct Tribunal of the Chartered Accountants Australia and New Zealand whereby he was excluded from membership of that organisation. The Tax Practitioners Board had decided to refuse renewal of his registration. The Board’s decision was affirmed by the Administrative Appeal Tribunal and it is this decision which was under appeal. The reference to “an illustration from history” at  referring to John Profumo is interesting. The appeal was dismissed.
Re Terry White Group Limited (No. 1)  QSC 254, Bond J, 2 November 2018
Kylie Downes QC appeared for the applicant seeking an order under s 411(1) of the Corporations Act 2001 that a meeting of its shareholders be convened to consider a scheme of arrangement. The application was successful. The detail of the orders made is instructive and potentially a useful guide in the context of such applications.
Cragcorp Pty Ltd v Queensland Civil Engineering Pty Ltd  QSC 203, Lyons SJA, 12 October 2018
Melanie Hindman QC led Hamish Clift for the respondent in an application to declare void an adjudication decision made under the Building and Construction Industry Payments Act 2004. The application alleged multiple instances of jurisdictional error made by the adjudicator, none of which was found to have been made out by her Honour Ann Lyons SJA, who dismissed the application with costs. The decision deals with the various grounds of jurisdictional error.
Jones v Aussie Networks Pty Ltd  QSC 219, Douglas J, 2 October 2018
Peter Somers appeared as junior counsel in this four day defamation trial successfully defending the claims brought. The decision considers the defences of qualified privilege and opinion in response to the defamation claim. The defendants also succeeded in defeating the plaintiffs’ additional claim for injurious falsehood, on the grounds there was no malice and the plaintiffs failed to establish that damage was caused by the relevant publication; as well as the plaintiffs’ further claim for misleading and deceptive conduct, relying on the information provider defence under section 19 of the Australian Consumer Law.
McDonald v AMP Financial Pty Limited (2018) 129 ACSR 605, Douglas J, 28 August 2018
Kylie Downes QC led Bruce Wacker for the plaintiff in this six day trial. The plaintiff was a financial advisor licensed to provide financial advice and sell AMP’s products pursuant to a contract which contract AMP had treated as terminated. The reasons deal with the plaintiff’s statutory duties (incorporated into the contract); the terms of the contract and the proper construction of those terms; alleged breaches of the contract; estoppel by representation; estoppel by convention; and misleading or deceptive conduct.
International arbitration heard in Singapore – January, April, August 2018
Brent Reading appeared as junior Counsel in a 16 week arbitration heard in Singapore. The arbitration was heard before three former members of the High Court, Queen’s Bench Division and involved complex technical issues concerning electrochemistry and physics. Brent was led by John Rowland QC, who is one of London’s leading Queen’s Counsel.
Body Corporate for Mount Saint John Industrial Part Community Title Scheme 18632 v Superior Stairs & Joinery Pty Ltd  QCA 173, McMurdo JA & Mullins & Bond JJ, 31 July 2018
Douglas Savage QC appeared on behalf of the successful appellant overturning summary dismissal of part of the appellant’s claim which had been dismissed on the ground that it was made outside a limitation period held to be prescribed by s 145(2) of the Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld). The issue upon appeal was whether s 145 does prescribe a limitation period. The Court of Appeal determined that it does not.
Fair Work Ombudsman v Hu (No. 2)  FCA 1034, 12 July 2018
Philip Tucker appeared with Robert Bain QC for the successful second and third respondents in respect of an accessorial liability claim. The case concerned labour hire services provided to the operator of a mushroom farm, and whether liability for inadequate piecework rates paid by the labour hire entity to its employees could be sheeted to the respondents. An appeal has been lodged.
Nortask Pty Ltd v Areva Solar KCP Pty Ltd (No. 1)  QSC 144, Lyons SJA, 28 June 2018
Mark Steele appeared for the defendant leading Hamish Clift in a one week trial. The decision deals, inter alia, with authority to enter into a contract; formation of and the terms of contract; and damages for trespass or mesne profits.
Wotton v State of Queensland (No. 10)  FCA 915, Murphy J, 15 June 2018
This long running class action settled in principle after a mediation (before Michael McHugh) late last year. After the conclusion of the liability trial in December 2016, Andrew Crowe QC with Scott McLeod and Steven Forrest appeared for the State of Queensland in the quantum stage of the proceeding which included analysis of detailed material in respect of the claims of the 447 members of the class. Following the mediation there were protracted negotiations finalising the terms of settlement. Murphy J approved the Settlement Scheme on 15 June 2008 which terms are annexed to the reasons. The settlement sum was a lump sum of $30 million – ie the State’s involvement in the dispute ended upon the approval of the settlement with the distribution of the $30 million to be determined under the terms of the Settlement Scheme.
Sino Resources Imp & Exp Co Ltd v Oakland Investment Group Ltd  QSC 98 Henry J, 14 May 2018
Savage QC leading Liam Copley acted for the plaintiff in this proceeding which concerned whether or not a loan and mortgage agreement (where the mortgage was registered under the Land Title Act 1994 (Q)) was a sham and whether or not the “sham” mortgage could be removed from the Land Title Register at the suit of a subsequent mortgagee. In finding the agreement was a sham and the mortgagee expunged the Court canvassed present authority regarding the requisite element of a sham and the requirements for deregistration of a registered instrument under the Land Title Act 1994 (Q).
Pike v Tighe  HCA 9, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, 14 March 2018
Savage QC leading Alex Raeburn acted for the Respondents in this appeal from a unanimous decision of the Court of Appeal of the Supreme Court of Queensland. The case concerned (in the High Court) the development conditions imposed by a local authority and whether or not the conditions bound successors in title who held title under the Land Title Act 1994 Q. The Court found that the development conditions unperformed by the developer of the land ran with the land and bound subsequent purchases of a part of the land as developed.