Banking and Finance

ANZ Banking Group Ltd v Loftus [2014] VSC 342 (Supreme Court of Victoria, led by Paul J Hayes, now QC), appeal from decision of an Associate Justice.

Sgargetta v National Australia Bank [2014] VSCA 159 (Victorian Court of Appeal, led by Paul J Hayes, now QC), appeal from County Court of Victoria concerning construction of a Deed of Settlement.

Building and Construction

RF Construction Management v Wightman Street [2019] VCAT Ref BP512/2019, disputing concerning release of bank guarantee at practical completion under ABIC SW-2008 Simple Works Contract – interlocutory order obtained requiring release of bank guarantee pending resolution of dispute, where delay damages claimed – submissions concerning Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd [2015] VSCA 98

Bayraktar v Sherridon (Building and Property) [2019] VCAT 1863, domestic building dispute – acting for builder in claim relating to general owner complaints of defective or incomplete works – reasonableness of rectification proposals (defective brickwork)

Polzella v Govern Constructions, Roh Floor (Building and Property) [2018] VCAT 1675, domestic building dispute – owner contracted builder to install timber floor, floorer to sand and coat – splits appeared in timber boards after project completed – alleged timber affected by "edge-bonding" adversely affected by by polyurethane coating – Tribunal rejected allegation, found floorer acted properly.

Raniti-CBMS v Ryan (Building and Property) [2018] VCAT 281, trial concerning a domestic building contract with an insurer-determined scope of works - issues concerning surface and subsurface drainage – need for building permit.

Bitu-Mill v Australian Commercial Builders [2015] D13835669 (Magistrates' Court of Victoria), defence and counterclaim concerning defective asphalt pavement, involving matters of design responsibility, express and implied warranties, exclusion clauses.

Haris v Kemal [2015] No. C1816/2014 and No. C4846/2014 (VCAT), action concerning the construction of an additional dwelling on land by an owner builder for a family friend (settled by parties at trial).

Harmonious Blend Building Corporation (t/a Clark New Homes) v Ibraham (Building and Property) [2014] VCAT 1084 (led by Jeremy A F Twigg, now QC), defence and counterclaim to action by Builder under the Domestic Building Contracts Act 1995.

Building/Planning Offences

Brooker v Chelvadurai [2018] H12586906 (Magistrates' Court of Victoria), for the accused, prosecuted by Maroondah City Council – matter concerned meaning of 'building work' within the Building Act 1993, accused had inspected works based on engineering drawings he had prepared, issued Certificates of Compliance – Builder had failed to obtain a building permit – Maroondah alleged inspections are 'building work' – charges dismissed as inspections not considered 'building work'

Commercial & Contracts

Megasealed Bathrooms & Balconies v Bendan Bathrooms [2019] VCC 864 – application for default judgment, in claim for breach of franchise agreement (seeking restraint of trade, restraint over confidential information) – distinction between debt and damages – necessary elements of pleading to enable default judgment (as opposed to summary judgment).

Israfoods (2006) Ltd v J & D Consortium Pty Ltd [2019] VSC 323 – application for summary judgment on distribution agreement –  agreement to be interpreted in accordance with laws of Israel – expert report on laws of Israel filed by plaintiff alone – defendant did not file witness statements detailing relevant surrounding circumtances – discretion to grant summary judgment under Civil Procedure Act 2010, where Court required to construe commercial contract according to foreign law.

Liu v BJ Bennett & Co [2018] (VCAT No.C83/2018) – claim by landlord against agent for alleged failure to exercise reasonable care when recommending a tenant – property raised several months in following discovery of a cannibas grow-house – agent found to have taken all care required, claim dismissed.

Asian Restaurants Concepts Franchising & Ors ('Noodle Box') v Mt Gravatt Noodle Box & Ors [2017] SC ECI 2017 00160 (Supreme Court of Victoria), acting for parties associated with former franchisee on application by franchisor for interlocutory injunction to force urgent closure post-termination of franchise agreement - issues concerning Franchising Code of Conduct, restraint of trade clauses - whether franchisee required to cease trade and terminate lease - whether franchisee entitled to renew agreement - injunction refused.

Sharma v Sharma [2017] F13320117 (Magistrates' Court of Victoria), claim between Indian nationals, uncle paid for niece to live and study in Australia (2001-7) - in 2015, alleges oral loan agreement in 2000, no contemporaneous notes - uncle to make subjective determination that niece capable of repayment - repayment term void for uncertainty, recovery barred after 6 years (Limitation of Actions Act 1958, s 5) - words giving rise to agreement not proven to standard in Watson v Foxman.

Raamish & Ayra v City of Melbourne [2015] VSC 277 (Supreme Court of Victoria), action in equity and misleading conduct for injunction and damages concerning alleged arrangement to berth ferry.

Lowther v Wood (t/a Hudson Advisory Group) (Civil Claims) [2014] VCAT 1499, action against mortgage broker and financial adviser under Australian Consumer Law for alleged misleading advice.

Defamation

Goldsmith v Brous [2015] SCI14-05226 (Supreme Court of Victoria, led by Paul J Hayes, now QC), defence to defamation action (settled at mediation).

Owners' Corporations

Featherston v OC RP000755 (Owners Corporations) [2019] VCAT 122, interpretation of phrase 'may be arranged by' in context of whether a 25%-plus lot owner can require an owners' corporation to conduct a special resolution by ballot (based on lot entitlement) instead of show of hands (based on attendence)

Professional Discipline

Espedido v Physiotherapy Board of Australia (Review and Regulation)

• [2017] VCAT 1401, stay application under sub-section 50(3) of the VCAT Act, for immediate action under section 156 of the Health Practitioner Regulation National Law (Victoria) Act 2009 – gender-based restriction imposed on physiotherapist following serious allegation of misconduct - action stayed on undertakings, where practitioner unable to find work and review application would be rendered nugatory
• [2017] VCAT 2032, application to summonses key witnesses, including complainant, to attend for cross-examination in hearing of appeal from immediate action - Board opposed, argued Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656 does not permit cross-examination, evidence should be restricted to that before Immediate Action Committee - application granted, no reason 'in logic or in principle' why additional evidence bearing on original decision cannot be lead.

Planning and Environment

Marks v Mornington Peninsula Shire Council [2019] VCAT 919, application to amend planning permit retrospectively – shed constructed on hobby farm in Green Wedge Zone (GWZ) – consideration of if shed for an agricultural purpose.

Property

Ventura v Ventura [2018] VSC 485, application by originating motion under section 49 of the Property Law Act 1958 – three co-vendors (mother, son, daughter) entered into a Contract of Sale of Real Estate – son refuses to sign related documents to enable conveyancing solicitor to process transfer, where all other parties are ready, willing, and able to perform - application by co-vendors against other co-vendor to perform the Contract of Sale, including signing Client Authorisation Form (or in his absence Prothonotary, under s 22 of the Supreme Court Act 1986) – Contract of Sale held to include obligations as between vendors and purchasers, as well as between vendors and vendors

Owners' Corporation PS507084R v Marley (Owners Corporations) [2018] VCAT 1598, claim by Owners' Corporation for an implied easement (right of way) over external terrace of a top-floor apartment providing access to the building roof, under subsection 12(2) of the Subdivision Act 1988 – case involving similiar facts to Body Corporate No 413424R v Sheppard (2008) 20 VR 362 (now on appeal)

Martin v Dyson (deceased) [2017] SCI 2015-05051 (Supreme Court of Victoria), claim for equitable interest by proprietary estoppel over land occupied by client's parents, then client, upon promise by uncle (owner of land) of a life interest - family home sold to fund establishment of new dwelling on occupied land - whether promise extended to client - whether expectations of client/parents from promise were reasonable, or benefits amoratised over 20 years' occupation (matter settled at trial).

Frigo v Perry (Owners Corporations) [2016] VCAT 730 – instructed by Moonee Valley Legal Centre on referral from Justice Connect – action in nuisance, interference with easements implied by section 12(2) of the Subdivision Act 1988 over driveway to rear lot on on a "battleaxe block" - front owner prevented from accessing side of own home via driveway by locked gate - neighbour required to permit access.

Murthy v KPS Services Pty Ltd [2015] SCI 2015 00728 (Supreme Court of Victoria), application under Transfer of Land Act section 90(3) to remove caveat lodged without a legitimate basis, indemnity costs sought – defendant withdrew caveat before hearing, offered to pay party/party costs - application pursued despite withdrawal – indemnity costs obtained.

Property (Tree Dispute)

Cianci v City of Melbourne [2019] J10297803 (Magistrates' Court of Victoria), claim by home owner for damages arising from street trees, nuisance and negligence – applicability of Road Management Act 2004 s 107, Wrongs Act 1958 s 83 – question of when damage arose (settled at trial)

Public Law

O'Sullivan v The Hon. Daniel Andrews, Premier of Victoria (2016) 50 VR 600; [2016] VSC 560 (Supreme Court of Victoria, led by Daryl J Williams QC) application for mandamus following nomination to fill vacancy in Legislative Council, but no joint sitting called as specified in section 27A of the Victorian Constitution.

Shurat HaDin – Israel Law Centre v Lynch [2014] NSD2235/2013 (Federal Court of Australia, led by Marcus Solomon SC), action concerning unlawful discrimination under the Racial Discrimination Act 1975 (settled prior to trial).

Residential Tenancies

JMG v Murray Human Services Inc (Residential Tenancies) [2019] VCAT 875 – successful defence of NDIS service provider following notice to vacate, where tenant opposed for alleged non-compliance with Disability Act 2006 – services provided to tenant in rental property owned by the provider, but not a "group home" or "residential service" – tenancy subject to usual provisions of the Residential Tenancies Act 1997.

Director of Housing v Clyde [2017] No. R2017/25483/00 (VCAT) – instructed by King & Wood Mallesons on referral from Justice Connect – tenant served with notice to vacate by Director, without offer of alternative accomodation – issue whether notice issued in the correct form – question of nature of evidence Director must lay before the Tribunal where nuisance alleged – consideration of Burgess v Director of Housing [2014] VSC 648 – following initial adjournment, Director resolved to offer tenant new housing.

Retail Leases

Lazarous v Kypri (Building and Property) [2017] VCAT 2148, urgent interlocutory application brought following lockout of the tenant by the landlord -  failure by landlord to particularise breaches in ostensible notices of breach, re-entry before time set under Property Law Act 1958 sub-s 146(2) – shown serious question to be tried, harm to tenant not adequately remedied by damages – interlocutory injunction granted – second injunction obtained after landlord removed water metre – landlord subsequent abandoned insistence on validity of notices of breach.

Glowell International v Biggin & Scott Commercial and 418 St Kilda Road (Building and Property) [2017] VCAT 1342,  issues concerning applicability of the Retail Leases Act 2003, construction of the terms of the lease, letter of offer versus signed lease - whether accounting fees incurred solely for litigation are damages or costs.

Grenville Trading v Braszell (Building and Property) [2016] VCAT 877 (led by Thomas G Moloney), question of issue estoppel – failure of supermarket floor, second preliminary question - landlord sought declaration that lease not renewed due to finding on first preliminary question - tenant says breaches by landlord were not the subject of the previous hearing - whether Tribunal finally determined that tenant not entitled to withold rent for alleged breach by landlord - whether tenant entitled to renew lease - held issue not finally determined.