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| 20/05/2013 10:23 AM | | |
CONTRACT – supply and installation of crane and tray top – failure of crane to perform to specifications – crane defects rectified by defendant – tray top short in length – whether any loss claimed was suffered – expert evidence – failure to establish loss claimed – failure to mitigate loss – Goods Act 1958 (Vic) ss 19, 61 – whether implied terms negatived by contract – interpretation of exclusion clauses.
TORT – negligence – negligent misstatement – whether claims negatived by contract. |
| Link to announcement: Hogan v BPW Transpec [2013] VSC 249 (16 May 2013) |
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| 20/05/2013 10:21 AM | | |
CONTRACTS – construction of employment contracts within long term employment relationship – where employee continued in same position in the employ of a company of international company group – where employment continued past initial fixed term – effect of secondment to new location within group – whether intention to vary, replace or terminate initial contract of employment – whether original employer continued or different group member became employer – objective test of identification of intention to contract and of contracting parties |
| Link to announcement: Cohen v iSOFT Group Pty Limited [2013] FCAFC 49 (8 May 2013) |
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| 20/05/2013 10:17 AM | | |
ADMINISTRATIVE LAW – Judicial review – Review of Magistrates’ Court decision – Default judgment – Application to set aside default judgment – Whether default judgment should have been set aside – Application to quash Magistrates’ Court order refusing to set aside judgment – No error of law – Application refused. |
| Link to announcement: Cheok v Papanastassis [2013] VSC 241 (10 May 2013) |
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| 20/05/2013 10:15 AM | | |
PRACTICE AND PROCEDURE – Transfer into Commercial Court – Summons issued prior to transfer – Applications for summary judgment.
COSTS – Application for indemnity costs and to fix a ‘gross sum’.
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| Link to announcement: Primebroker Securities Ltd v Lomas [2013] VSC 223 (10 May 2013) |
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| 20/05/2013 10:13 AM | | |
INTELLECTUAL PROPERTY – Patents – Construction of claims – Infringement of claims – Applicable principles – Section 116 Patents Act 1990 (Cth) – Amended patent – Whether reference to specification without amendment and other Patent Office documents permissible in construction – Skilled addressee and skilled team
INTELLECTUAL PROPERTY – Patents – Validity – Novelty – Prior art and common general knowledge
INTELLECTUAL PROPERTY – Patents – Validity – Inventive step – Common general knowledge and s 7(3) documents – Cripps question – Inventive journey of patentee – Secondary indicators – Commercial success – Conduct of competitors
INTELLECTUAL PROPERTY – Patents – Manner of new manufacture
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| Link to announcement: Ranbaxy Laboratories Limited v AstraZeneca AB [2013] FCA 368 (23 April 2013) |
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| 20/05/2013 10:11 AM | | |
BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication conducted under Part 3 Division 2 of the Act – Apparent conflict between s 10B(2)(c) with s 11(1)(b)(iv) of the Act – Conflict resolved by application of statutory construction principles –Adjudicator erred in statutory construction – Jurisdictional error – Certiorari granted – Determination of adjudicator quashed and matter remitted for determination in accordance with the law.
STATUTES INTERPRETATION - Apparent conflict between provisions of an Act – Conflict resolved by application of statutory construction principles – Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]- [71] considered and applied. |
| Link to announcement: Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243 (10 May 2013) |
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| 20/05/2013 10:08 AM | | |
TRADE PRACTICES — Misleading and deceptive conduct in a land sale — Section 52 Trade Practices Act 1974 (Cth) — Whether purchaser misled — Reliance on representations — Purchaser gives unsatisfactory evidence of reliance — Principles in Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215 considered and applied — Inference of reliance able to be drawn — Inference of reliance not precluded by the unsatisfactory direct evidence of the representee. |
| Link to announcement: Lord Buddha Pty Ltd v Harpur [2013] VSCA 101 (9 May 2013) |
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| 20/05/2013 10:05 AM | | |
LANDLORD AND TENANT – Retail premises lease – Renewal – Executory contract between tenant under retail premises lease and purchaser of reversion under uncompleted contract of sale of reversion for new lease of premises to commence upon expiration of existing retail premises lease – Whether executory contract a ‘renewal’ of lease within meaning of Retail Leases Act 2003 (Vic) – Whether executory contract valid and enforceable though not a ‘renewal’ – Assignment – Purported assignment by tenant to new tenant (‘assignee’) of both remainder of term of lease and executory contract for new lease – Whether assignment effective to convey both benefit and burden of executory contract for new lease – Later completion of contract of sale of reversion – Whether purchaser of reversion entitled to enforce executory contract for new lease as against assignee – Guarantee – Construction of guarantee – Whether guarantee of assignee’s obligations extending to assignee’s obligations under executory contract for new lease – Whether guarantee of obligations under executory contract for new lease a covenant running with land – Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242, distinguished; P A Swift Investments v Combined English Stores Group Plc [1988] UKHL 3; [1989] AC 632, Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; (2008) 234 CLR 237, applied – Retail Leases Act 2003 (Vic), ss 3, 8, 9(b), 21(4); Property Law Act 1958 (Vic), ss 140, 141, 142 and 154; Transfer of Land Act 1958 (Vic), ss 40, 42(2)(e) and 66.
APPEAL – Practice and Procedure – Application for leave to appeal out of time from decision of Victorian and Administrative Tribunal (‘VCAT’) – Need to show good reason for delay – Retail premises lease – Application for leave to appeal granted but appeal dismissed – Picken v President etc of the Shire of Alexander [1890] VicLawRp 65; (1890) 16 VLR 309, 311; In the Marriage of J F and J E McAleese (1977) 3 Fam LR 11604, referred to – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(2). |
| Link to announcement: Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106 (10 May 2013) |
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| 20/05/2013 10:03 AM | | |
REAL PROPERTY – Sale of land – Contract – Interpretation – Time for Registration of Plan of Subdivision – Whether contract validly rescinded by purchasers – Construction – Whether Plan not registered on ‘relevant date’ – Period of time for extension – Whether date ‘fixed’ – Whether ‘other period’ specified – Solid Investments Aust Pty Ltd v Clifford [2010] VSCA 59; (2010) 27 VR 41, Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 followed – Sale of Land Act 1962 (Vic) s 9AE(2). |
| Link to announcement: Harofam Pty Ltd v Scherman [2013] VSCA 104 (10 May 2013) |
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| 20/05/2013 10:02 AM | | |
REAL PROPERTY – Sale of land – Contract – Interpretation – Time for Registration of Plan of Subdivision – Whether contract validly rescinded by purchasers – Construction – Whether Plan not registered on ‘relevant date’ – Period of time for extension – Whether date ‘fixed’ – Whether ‘other period’ specified – Solid Investments Aust Pty Ltd v Clifford [2010] VSCA 59; (2010) 27 VR 41, Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 followed – Sale of Land Act 1962 (Vic) s 9AE(2). |
| Link to announcement: Harofam Pty Ltd v Allen & Ors [2013] VSCA 105 (10 May 2013) |
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| 20/05/2013 10:00 AM | | |
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – ORDERS SET ASIDE OR VARIED – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the learned primary judge had established that there was a serious question to be tried and that the balance of convenience favoured the granting of injunctive relief, conditional upon the appellant (in this proceeding) paying the amount of the guarantee into court – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – whether the primary’s judge’s discretion miscarried
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – where there was a dispute about the proper construction of the contractual clause concerning the performance bond – where the appellant contended that, by virtue of its accrued rights, it was not obliged to return the performance bond, notwithstanding termination of the contract by the respondent – where the respondent contended that the appellant had no accrued rights and was obliged to return the performance bond – whether the proper construction of the contract obliged the appellant to return the performance bond – whether serious case to be tried
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| Link to announcement: Lucas Drilling Pty Limited v Armour Energy Limited [2013] QCA 111 (14 May 2013) |
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