John Gooley - Barrister, Advisor, Lecturer & Author

Timeline

Recent Significant Cases

2023

Carnegie v Nelson-Carnegie
[2023] NSWSC 1379

One of the issues in this case concerned whether specific performance, as opposed to damages, was an appropriate approach in circumstances where the plaintiff sought orders for specific performance of a binding term sheet which provided for the declaration of a dividend sourced from conduit foreign income and then for a declaration of trust. An issue also arose as to whether the proceedings constituted a matrimonial cause and therefore outside the jurisdiction of the Supreme Court. The Cout determined that the dispute did not involve a matrimonial cause and made orders for specific performance.

2023

United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 (5 October 2023)

This matter involved an appeal and cross-appeal from the decision of the Supreme Court of New South Wales in Par Recycling Services Pty Ltd v United Resource Management Pty Ltd [2022] NSWSC 1269 (20 September 2022) and Par Recycling Services Pty Ltd v United Resource Management Pty Ltd (No 2) [2022] NSWSC 1405 (17 October 2022)

2023

Amy Rickhuss v The Cosmetic Institute Pty Ltd (in liq) and 19 others (Supreme Court of NSW, No 2017/279308).

This matter is a class action in which damages are claimed by the plaintiffs, and on behalf of group members, being individual patients who had breast augmentation surgery on or before 29 October 2017 at identified premises and whose surgery was performed by or with the assistance of one or more of 12 doctors in accordance with an alleged standard approach described in the pleadings as the “One Size Fits All Approach”. Allegations of negligence, breaches ss 60, 61(1) and 61(2) of the Australian Consumer Law in relation to supply of services and allegations of misleading and deceptive conduct have been pleaded. Issues of limitations and non-availability of certain causes of action have also been pleaded in response.

The proceedings were originally set down for a 12–14-week hearing in the Supreme Court of NSW beginning September 2023 but were subsequently vacated in consequence of an appeal to the NSW Court of Appeal concerning, inter alia, an application to declass the proceedings. The decision of the Court of Appeal is to be found at [2023] NSWCA 249. The matter has now been set down for final hearing from April 2024.

2023

Gleeson (Trustee), in the matter of Soong v Soong [2023] FedCFamC2G 819

This made involved the determination of a separate question whether notice given by a trustee in bankruptcy purportedly pursuant to s 129AA(4) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) was valid. It was held that the determination of that question turned on whether the period of 3 years after the date on which the bankrupt files his or her statement of affairs provided for in s 149(4) of the Bankruptcy Act is to be calculated by including the day on which the bankrupt files his or her statement of affairs. The court found that the calculation of the period of 3 years does not include the day on which the bankrupt files his or her statement of affairs and, accordingly, that the notice issued by trustee was valid. The matters also involved claims under section 121of the Bankruptcy Act 1966, section 37A of the Conveyancing Act 1919 and includes allegations that a particular agreement is a “sham agreement”. These issues have not yet been determined.

2022

Colin CM Moore Pty Ltd v Sivathasan [2022] NSWSC 532

These proceedings involved a Licensing Agreement between the plaintiffs and the defendant whereby the defendant was granted a licence to use intellectual property the subject of ten separate patents which related to surgical techniques to facilitate phalloplasty and which were described in the schedule to the Licensing Agreement. The term of the licence was for five years and, in addition, the defendant was granted a further five year right of use upon the expiry of the license term. Two of the Australian patents (being the patents numbered one and five in the schedule had expired prior to the commencement of the Licensing Agreement and, a further Australian patent (being the patent numbered two in the schedule), expired shortly after commencement of the term of the Licensing Agreement. One Australian patent (being the patent numbered nine in the schedule) was valid for most, but not all, of the five year term of the licence. The defendant contended that it was an express or implied term of the Licensing Agreement that the plaintiffs vouched that each of the patents listed in the schedule was operative at the time of the commencement of the Licensing Agreement and undertook that each of the ten patents would remain operative throughout the licence period, including the period of any renewed licence following the exercise of the defendant's option. The Court accepted this as an express or an implied term and found that the plaintiffs were in breach thereby entitling the defendant to terminate the Licensing Agreement. In addition, the matter involved the effect of a number of representations that were found to have been made and which it was held were misleading and deceptive.

2022

Rashays Cafe & Restaurants Pty Ltd v Mohammed Mateen Nazari & Anor (Supreme Court of NSW, 2020/195321)

This matter, which settled on the third day of a hearing before Ball J in 2022, involved claims by a franchisor against two guarantors of a franchisee company's obligations pursuant to a franchise agreement. The guarantee was contained in the relevant franchise agreement. It was contended by the defendants that the guarantee was not binding.

2022

D Capital 2 Pty Ltd v Western and others [2022] NSWSC 1064 (12 August 2022) and 2022] NSWSC 1283 (23 September 2022)

This dispute concerned various put and call option deeds relating to a block of 10 residential home units which were to be sold in one line to a purchaser. Relevant interdependent contracts for sale were exchanged with a single conveyancer authorised to liaise with the purchaser and to give permissions and receive notices under deeds. Claims for declaratory relief, specific performance and damages (including equitable damages) were made in circumstances where the interdependent contracts of sale had been terminated after Notices to Complete had been served and not complied with by the purchaser. As noted in the Real Property and Strat Titles section of this web-site, principles regarding electronic conveyancing were raised including the duty to cooperate in the context of PEXA settlement. A further question raised concerned whether a contract entered into in contravention of section 49 of the Property, Stock and Business Agents Act 2002 (NSW) was void or voidable. . In addition, questions concerning a conveyancers duty of care (at paragraphs [296]-[306]) were raised as were notices to complete requirements and the availability of equitable remedies.

Final orders were the subject of a separate judgement to be found at D Capital 2 Pty Ltd v Western and others [2022] NSWSC 1283 (23 September 2022).

2022

Par Recycling Services Pty Ltd v United Resource Management Pty Ltd [2022] NSWSC 1269 (20 September 2022) and Par Recycling Services Pty Ltd v United Resource Management Pty Ltd (No 2) [2022] NSWSC 1405 (17 October 2022)

This matter involved claims in contract in circumstances where a contract between United Resource Management Pty Ltd and Kimbricki Environmental Enterprises Pty Ltd (the KES Agreement) had terminated with that termination having the effect of terminating a subsequent contract between Par Recycling Services and United Resource Management Pty Ltd (the Supply Agreement). Further, a significant question for consideration was whether a further contract to share revenue from the operation and participation in a container deposit scheme was brought about by misleading or deceptive conduct by silence. This question, together with the following issues were among those that were considered by the Court: First, whether a common mistake had been made to the effect that the Supply Agreement remained on foot; second, whether an implied contract had been made and if so, who were the parties and what were its terms; third, what impact did the termination of the Supply Agreement have on any subsequent agreement between Par Recycling Services and United Resource Management Pty Ltd; fourth, whether loss or damage was suffered as a result of mistake; fifth, whether the parties became bound by an implied agreement as the result of misleading or deceptive conduct; sixth, whether loss or damage was caused by misleading or deceptive conduct; seventh, whether certain evidence was admissible as expert opinion evidence; eighth, whether Jones v Dunkel inferences should be drawn.

An appeal was heard on 13 and 14 April 2023 in the NSW Court of Appeal in relation to the decision at first instance. Judgment on the appeal is to be found at United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 (5 October 2023).

2021

Perry v Perry & ors. [2021] NSWSC 1669

This matter involved claims in relation to an unadministered intestate estate where an administrator had been appointed 45 years ago and where the primary asset in the intestate estate was a rural property. Allegations were made by the plaintiff beneficiary that the administrator had maladministered the estate and sought accounting on the basis of wilful default. The claims were made in circumstances where the evidence was fallible and contemporary documents lacking. The matter also concerned an application by the plaintiff for revocation of grant of letters of administration to the first defendant administrator and appointment of replacement administrator. Another important aspect of the case involved the powers, duties, rights and of trustees, and, in particular, the power to provide for maintenance and advancement of minor beneficiaries. In this case the first defendant administrator used beneficiaries' entitlements to provide for their maintenance and advancement during their minority. The Court found that orders could be made authorising a trustee to apply income of a trust for maintenance, education and advancement of minor beneficiaries - particularly where the plaintiff beneficiary attained majority over 20 years ago and where the first defendant administrator was a single parent with limited source of income.

2021

Community Work Pty Ltd t/as Guardian Youth Care (Supreme Court of NSW, 2020)

These proceedings involved claims by a liquidator against directors (current and former) in which allegations of breach of fiduciary duty and breaches of duty of care have been made. Issues concerning an Insurer's liability to advance defence costs in the Supreme Court Proceedings and the proper construction of an allocation clause contained in a Director's and Officer's Insurance Policy were raised in related Federal Court proceedings: see Casey v AIG Australia Limited [2021] FCA 553 (24 May 2021).

2021

Murray Goulburn Co-operative Ltd and MG Responsible Entity Ltd v AIG Australia Ltd [2021) FCA 288.

This case involved an application for certain declaratory relief to the effect that claims made in particular class action proceedings were “Securities Claims” within the meaning of a particular Directors and Officers Insurance Policy and that certain Endorsements within that Policy did not apply to those claims. The particular insurance policy contained side C cover. The claim for indemnity arose in the context where settlement sums had been paid to settle two class actions where alleged contraventions of continuous disclosure provisions had been made in circumstances where units in a listed unit trust had been issued pursuant to a product disclosure statement and subsequently on-market. The meaning and scope of the expression, “arising out of, based upon, attributable to” was examined as was a “professional services” exclusion in the policy.

2021

Casey v AIG Australia Limited [2021] FCA 553 (24 May 2021)

In this matter, the applicants were former directors of a company insured by the respondent pursuant to a not-for-profit management liability policy and had been sued by the company and its liquidators in proceedings in the Supreme Court of New South Wales for breach of fiduciary duties and breach of duty of care. The relevant insurance policy included an obligation to advance defence costs. The Insurer had accepted the obligation to pay defence costs incurred by the applicants in defending allegations of breach of duty of care and had paid 70 per cent of the applicants' defence costs pursuant to an allocation clause contained in the policy. A question for determination was whether the respondent Insurer was liable under the policy to pay costs incurred in defending the alleged breach of fiduciary duties. Central to the determination of this issue was whether the applicants were acting for or on behalf of the insured company. Another issue was whether the Insurer was in breach of the duty of utmost good faith in relying upon the allocation clause and whether the applicants were entitled to damages for breach.

The Federal Court held that the respondent insurer was liable to pay the whole of the costs of the defence until further order and that the allocation clause was not engaged. The Court refused to make the requested order for indemnity for liability and rejected the utmost good faith and damages claims.

2020 - 2021

Loo, in the matter of Halifax Investment Services Pty Ltd (in liquidation) v Quinlan (Liquidator) [2021] FCAFC 186; [2021] FCA 531; [2021] NZCA 561; [2021] NZHC 1113; [2020] FCA 248; [2020] FCA 533; [2020] FCA 1146; [2020] FCA 1282

This litigation known as the Halifax litigation involved applications by liquidators and/or trustees pursuant to 90-15 of the Insolvency Practice Schedule (Corporations) being Schedule 2 to the Corporations Act (Cth) and/or section 63 and 81 of the Trustee Act 1925 (NSW). The applications were made in circumstances where company funds and trust funds were co-mingled. The following questions were among those to be determined by the Federal Court and the High Court of New Zealand who heard the matters simultaneously:

a) whether liquidators were justified in using trust and co-mingled funds to pay their remuneration for the administration and liquidation;

b) whether judicial advice was appropriate with respect to closing out of extant investments of investors in the insolvent entities;

c) whether liquidators were justified in refraining from realising investments until the determination of all substantive issues in the proceedings;

d) whether representatives of investors should be appointed.

2020

In the matter of K-C Trade Pty Ltd (in liq), (Supreme Court of NSW No 291850 /2020)

This matter involved a number of public examinations pursuant to section 596B of the Corporations Act of various persons associated with the management of K-C Trade Pty Ltd (in liq). Subsequently, in 2020, proceedings were commenced by the liquidators against various directors of the company in In the matter of K-C Trade Pty Ltd (in liq): Trevor Pogroske in his capacity as liquidator of K-C Trade Pty Ltd (in liq) and K-C Trade Pty Ltd (in liq) v Grant Clarke and ors. (Supreme Court of NSW No 333191 of 2020. In those proceedings allegations of insolvent trading and claims under s 588M of the Corporations Act were made.

2020

Lorenzato v Burwood Council and ors. [2020] NSWSC 1659 (23 November 2020)

This case involved allegations of negligent misstatement and breach of duty by a local council and a vendor of real property. The matter also involved allegations of professional negligence against the vendor’s solicitor as well as private nuisance by public authority. In relation to the professional negligence claim made against the vendor's solicitor, a question arose as to whether the solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions. The Court held that negligence had not been established. Applications for special costs orders were also made.

Barrister, Advisor, Author & Lecturer

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