Posts of FLAST DIGEST TEAM RSSFri, 18 Sep 2020 05:28:29 GMTChina Insurance Group Finance Company Ltd v Kingston [2020] NSWSC 1273 This is an appeal of the denial of an application for injunctions and freezing order made by a Chinese lending company against its debtor, the director of Sargon Companies. Chinese lending company claims that debtor’s past conducts suggest that his probity cannot be relied upon. Facts:  China Insurance Group Finance Ltd ("China Insurance"), is a Chinese State-owned corporation based in Hong Kong. It agreed to lend the defendant, Mr Phillip Kingston, some HKD653 million (equivalent to approximately AUD122 million). Mr Kingston has defaulted and the loan is now due. Mr Kingston was a director of Sargon Capital Pty Ltd ("Sargon Capital"), Trimantium Investment Management Pty Ltd ("TTIM") and Trimantium Capital Funds Management Pty Ltd ("TCFM") (together, "the Sargon Companies"). Mr Kingston is one of a number of people summonsed by the Receivers to appear in this Court to be publicly examined in relation to the affairs of the Sargon Companies for seven days commencing 19 October 2020. China Insurance sought a freezing order against Mr Kingston and an order requiring him to give an affidavit of assets. It claims that a freezing order should be made because: China Insurance has a strong prima facie case against Mr Kingston; Receivers have expressed “concern that funds may have been misappropriated or misdirected” by Mr Kingston from one or other of the Sargon Companies (TTIM borrowed $50 Million from Tiaping and some $40.3 million was paid from TCFM to recipients that the Receivers have not been able to identify); Mr Kingston has “not acceded fully” to requests by the Receivers to deliver books and records of the Sargon Companies and has caused the removal the trustee of a trust that the Receivers are investigating (Mr Kingston's replacement of TCFM as trustee of the Trust should be seen as an example of him "obstructing" the Receivers’ investigation and a breach of his obligation to Tai... Read more

]]>Fri, 18 Sep 2020 05:28:29 GMTSchieb v Burnheim [2020] NSWSC 1254 This is a cross-claim for damages in the principal sum of $131,821.04 for breach of contract and misleading or deceptive conduct under the Australian Consumer Law (ACL). Cross-defendant convinced cross-claimant to co-purchase a lot with no existing water access. Cross-defendant promised to secure water rights to the property, which never materialized. Facts:  The Great Artesian Basin lies far below the properties of the Coonamble Shire. Bores drilled hundreds of metres into the ground release water from that vast aquifer to irrigate crops and provide water for stock. One such bore is formally known as the "New Wingadee No. 4 Bore Scheme" (“Scheme” or “Bore”). Several properties are entitled to draw water from the Bore for free in return for contributing to its capital costs from time to time. The property owners are part of the Scheme and are covered by the Bore Agreement. Following execution of the Bore Agreement, the Scheme members sank a bore for artesian water at a cost of $130,000 shared between the 8 members. New members can be admitted to the Scheme by vote of the members and provided that not more than two members dissent. The cross-defendants, Donald “Don” Schieb and his wife Ainslie Schieb (the “Schiebs”), have together been original members of the Scheme. The Schiebs have known Peter Burnheim and his wife Leah Burnheim (the “Burnheims”) for 45 years, with Don Schieb having been the Burnheims' stock and station agent for about 10 years in the 1980s. At an auction in March 2011, the cross-claimants, the “Burnheims”, jointly purchased a property called “Mikimba” with the Schiebs. The parties agreed to subdivide Mikimba so that each couple became the registered proprietor of approximately half of the property. Clause 12.3 of the Deed of Partition includes the obligation “to do all things necessary and sign all appropriate documentation to enable Burnheim (sic) water rights to the Wingadee No 4 Water Scheme”. S... Read more

]]>Fri, 18 Sep 2020 03:41:21 GMTR v Doudar [2020] NSWSC 1262 This is an appeal against conviction for the offence of being an accessory after the fact to murder. Man helped conceal a getaway vehicle following a public execution. He appeals conviction on account that his participation is minimal and seeks 25% reduction of his sentence because of his plea of guilty. Facts:  On 15 February 2018 shortly after midday, Mahmoud Hawi came out of the Fitness First gym in West Botany Street, Rockdale. He got into his Mercedes Benz AMG 4WD which was parked just outside the entrance. A man dressed in black and wearing a black balaclava approached the driver's side window and shot Mr Hawi multiple times in the head and upper body with a pistol. Mr Hawi had suffered a non-survivable penetrating brain injury and he died after life support was withdrawn. The person who shot Mr Hawi was Yusuf Nazlioglu, a close friend of Mr Douda, appellant in this case. Nazlioglu was driven to the scene of the shooting by Jamal Eljaidi. Immediately after killing Mr Hawi, they set fire to the Mercedes and then drove away in a silver Toyota Aurion which was parked earlier that morning. They went to an address and parked the Aurion in the garage. On 17 February 2018, Mr Doudar, Nazioglu and Moustafa Salami were caught on CCTV loading the silver Aurion onto the back of a truck. Salami took it to Botany Road where it was unloaded and parked. On 16 March 2018, police were completing a CCTV canvass along Botany Road when they came across the car by chance. Gunshot residue in the balaclava, which was found in the car matched that which was found at the scene of the murder. DNA was discovered matching Nazlioglu, Eljaidi and Salami. On 17 August 2018, Mr Doudar was arrested. He underwent committal proceedings in the Local Court on the charge of murder that was initially preferred. He pleaded guilty upon arraignment. On that day, the Crown presented an amended indictment omitting the count of murder and substituting a count of a... Read more

]]>Fri, 18 Sep 2020 02:16:11 GMTR v Kellett [2020] QCA 203 This is an appeal against 11 counts of sexual offences filed by 7 complainant children under 16, three of whom were appellant’s daughter, niece and daughter of his de facto partner. Appellant seeks separate trials for each of the complainants on the ground that what was alleged by one complainant was not cross admissible to prove the allegations by another. Facts:  The counts alleged various instances of sexual offending by the appellant at the appellant's family home located on a farm, which also was one of the few houses in the area to have a pool. The complainants were aged between 10 and 16. Three of the complainants had a family relationship to the appellant; J being the appellant's daughter, KD his niece and NF the daughter of his de facto partner. Of the other complainants, GC, JC and AW were friends of the appellant's daughter J, while KW became a friend of the appellant's son, M, as a result of her mother working for the appellant and KW later married M. Complainant KD (count 1): D gave evidence of an incident in 1993, when she was aged 15 and was babysitting the appellant's children at the farmhouse. he heard the appellant rummaging in the freezer and getting some ice. He came into the alcove and sat on her bed. He then lifted her T-shirt nightie and placed ice on her chest, rubbing it on her breasts and nipples saying, "You look hot" in a hushed voice. She froze and then rolled away from him and left the room. Complainant J (counts 2 and 7): J gave evidence of an incident in March 2004 when she was 13 years old. he returned home after attending a swimming carnival and mentioned to her parents about how sunburnt she was. The appellant told her to go and lie down in the air conditioning and he would put some aloe vera on her back. With each stroke, he was moving his hands further towards the side and started to cup her breasts. (count 2) J gave evidence of another incident on Christmas Day in 2005 when she was 15 years old... Read more

]]>Thu, 17 Sep 2020 07:53:58 GMTR v Kellett [2020] QCA 199 This is an appeal against conviction for rape and unlawfully causing grievous bodily harm. Two consenting adults engaged in a sexual act, when suddenly, the male fisted the female’s vagina, causing it to bleed and tear. Facts:  Before meeting the appellant for the first time the complainant and the appellant had exchanged messages and photos of a sexual nature, including image of themselves undressed, and in her case an image of her vagina with her fingers inserted. The appellant arrived at her house “agitated and cranky, and jittery”. As he came in the front door he put his hand around her throat and pushed her against the wall, starting to kiss her. Complainant told him to calm down, and he did. Appellant attempted to have anal sex, but desisted when she told him she felt uncomfortable. At a point before the appellant inserted his hand, he hit her three times on the face, using an open hand. Then, the appellant asked for lubrication, pinned the complainant on the bed, and unexpectedly, inserted his hand and then formed a fist inside complainant’s vagina. Notwithstanding complainant’s screams and protests, and telling him to stop, appellant said "One, two, three" and thrust his fist even further. The appellant withdrew his hand and it became apparent that the complainant was losing a substantial quantity of blood from her vagina. She was taken to hospital and underwent surgery. Complainant lost 2 litres of blood, and sustained two full thickness tears to the vaginal wall, one 10 cm and the other 2 cm long. Appellant was convicted after a trial on two counts: count 1, rape, and count 2, unlawfully causing grievous bodily harm. The appellant was sentenced to concurrent terms of imprisonment: seven years on the rape count, and six years on the count of grievous bodily harm. Each offence was declared a serious violent offence, with the consequence that the appellant would be required to serve 80 per cent of each period. Appella... Read more

]]>Thu, 17 Sep 2020 05:39:34 GMTAustralian Securities and Investments Commission v Rent 2 Own Cars Australia Pty Ltd [2020] FCA 1312 This is an application by the Australian Securities and Investments Commission (“ASIC”) for a range of relief in relation to alleged conduct of Rent 2 Own Cars Australia Pty Ltd (“R2O”) involving contraventions of the National Credit Code (“Code”) and the Australian Securities and Investments Commission Act 2001 (“ASIC Act”). ASIC contends that R2O provided credit through a hire purchase style of contract between R2O and consumers for the purchase by them of used cars from R2O franchisees. ASIC also contends that R2O directors Mr Roberts and Mr Green were “involved” in willful deception of said consumers as to the annual interest rate of the contracts, in contravention of the National Credit Code. Facts:  R2O is a holder of an Australian Credit Licence. That licence recites 12 classes of "credit activities" in which R2O is authorised to engage as a "credit provider”. R2O operated its business through a network of franchisees. Between 17 July 2017 and 26 July 2018, there were 21 such franchisees operating in Queensland, New South Wales, Victoria, South Australia, Tasmania and Western Australia. R2O authorised each franchisee entity or person, and/or one or more persons employed by the franchisee to be a credit representative of R2O. During this period, R2O made 232 contracts with consumers for the purchase by them of used cars from R2O franchisees. Save minor differences in format and terminologies, the contracts have the following features: First, each contract required a consumer to pay a deposit, sometimes called a first payment, which is approximately 75% of the stock purchase price of the used car. Second, the contract provided for each consumer to make weekly repayments throughout the term of the contract, majority of which is between 1.5 years to 2 years. Third, each contract referred to the cash price of the car as the car retail price or the comp... Read more

]]>Thu, 17 Sep 2020 05:33:44 GMTNettlefold-Calam v Woodhouse [2020] TASSC 35 This is an appeal of a conviction for reckless driving, assault and failing to stop and stay at the scene of a crash. Two former friends came across each other along Brightwater road. An altercation ensued culminating with one of them dragging the other through a moving car, and leaving her unconscious on the side of the road. Facts:  Lillian Mae Nettlefold-Calam (“Applicant”), and complainant had been friends since school, but in about September 2017 their friendship broke down. At abut 12 noon on 4 May 2018, complainant was driving from Tinderbox to Hobart via Brightwater Road. Applicant was driving from Blackmans Bay to Tinderbox to take her dogs for a walk, and was also driving along Brightwater Road. When applicant saw complainant, she reacted by veering in front of complainant’s car which caused complainant to veer to the left of her lane and come to a stop. Applicant then went over to Y’s driver side window, and complainant was trying to use her phone. Applicant took it and also removed the car keys from the ignition. Complainant had a takeaway coffee in her car and threw it in the direction of the applicant. The complainant got out of her car and reached in through the driver's side window of the applicant's car to try and obtain her keys and phone. The applicant then moved her car forward, then reversed it, and then drove off. As the applicant's car was moving, the complainant's arm was caught through the window and although at first she was able to run alongside the car whilst it was moving, when the applicant increased speed, the complainant was dragged for approximately 20 metres. Complainant’s arm eventually became free and she hit her head and buttocks on the bitumen. She was left on the road and later on assisted by two drivers passing by. Applicant, on the other hand, claimed that the complainant had her by the hair and was scratching at her and effectively pulling her head out of the window, ... Read more

]]>Wed, 16 Sep 2020 07:13:45 GMTS v Barnes [2020] WASC 327 This is an appeal by the husband against his conviction for the offence of aggravated common assault filed by his wife. Wife and husband had a prolonged and heated argument, which culminated with husband choking the wife. Husband claims that he acted out of self-defence and in response to wife’s provocation. Facts:  On 17 September 2017, wife came home shopping with her mother and 12-year-old daughter. Husband expressed his annoyance that wife spent money on lavender plants, saying ‘what the fuck are these’. This remark set the tone for exchanges that followed. Later on, wife went into the theatre room where husband was sitting. She asked him to leave the room so she could turn on the television to placate their son. The husband refused, saying the children could watch with him in the room. The wife went in and out of the theatre room on a number of occasions: First, the wife went into the room slapped the husband and left the room. When the wife returned she tried to pull the husband off the couch on which he was sitting. At some point, there was a scuffle as the husband tried to restrain the wife. Husband and wife ended up on the ground with the husband on top of the wife. The wife grabbed at the husband's face in an attempt to get him off her. Wife threatened to smash a hard disk drive and a Playstation device, unless husband left the room, when the husband refused to leave the room, the wife smashed it on the floor. When wife returned, she used her legs to try to force the husband off the couch. While wife was kicking the husband, she said, 'If you don't do as I say, you'll never see your son again'. At that point husband grabbed the wife around the neck with his right hand and squeezed her throat. The Wife lost consciousness. The wife’s father arrived at the house not long after. The husband told him, 'I did it. I choked her out. I don't know why I did it. I'm not running away. I'm not hiding. I'm here to take my me... Read more

]]>Wed, 16 Sep 2020 04:47:26 GMTVander Sanden v Johnson [2020] WASC 331 This is an appeal against the sentence of 6 months and 1 day imprisonment for failure to comply with Quarantine Directions made under the Emergency Management Act 2005. Woman entered Western Australia from Victoria concealed in a truck and did not comply with 14-day quarantine upon arrival. Facts:  On 15 March 2020 a state of emergency was declared in Western Australia in response to the declaration by the WHO that COVID-19 was a pandemic. Pursuant to the Emergency Management Act 2005, directions were made effectively closing the borders of Western Australia to all except for exempt travellers. On 30 July 2020, Ms. Vander Sanden was granted an approval to enter Western Australia from Victoria, where she had been for approximately 1 month visiting and assisting her sister who was unwell. The approval included a requirement that upon arrival, she must quarantine for 14 days at a quarantine centre at her own expense. Between 31 July and 1 August, Ms. Vander Sanden was in Mildura, in north-west Victoria and requested a lift from a truck driver, who agreed to take her to Perth. She passed through the Eucla border control point hidden in a car being transported by the truck. On arrival, her partner drover her to an address in Scarborough. She was already aware at that point that the police was trying to locate her. On 11 August 2020, the police located Ms. Vander Sanden and obtained full admissions to the offence. Vander Sanden was charged with failure to comply with 'a direction given under the Emergency Management Act 2005, contrary to s 86(1)(a) of the Act. Vander Sanden pleaded guilty and was sentenced to immediate imprisonment of 6 months and 1 day. She appeals the sentence, claiming that it is manifestly excessive. Issue: Was the sentence of immediate imprisonment of 6 months and 1 day manifestly excessive? Is it proper to suspend part or all of the sentence? Law: Section 86(1) of the Emergency Management Ac... Read more

]]>Wed, 16 Sep 2020 02:27:04 GMTBullock v The Queen [2020] SASCFC 86 This is an #appeal of the decision of the trial judge #sentencing offender with 4 years and 7 months imprisonment, on the basis that it is manifestly excessive. Offender was driving a motor vehicle which collided with a child, who died as a result of his injuries. Offender failed to stop, assist and present himself to police after the collision. Facts:  At 8:00 pm on Sunday 12 February 2017, Mr. Bullock was driving a blue Kia Cerato motor vehicle on Branksome Terrace in Dover Gardens. He came from the supermarket to buy cigarettes. ZC (aged 2 years and 10 months) and his two older sisters (aged 5 and 7 years) were playing in the vicinity of their home on Branksome Terrace. When Mr. Bullock turned into Branksome Terrace, he was traveling along it at a speed of 35 kph. As he approached a tree on his left, he saw a little girl ran out from behind the tree onto the road. He swerved to the right to miss her and heard a noise at the front of the car. Something then went under his rear wheels. He stopped the vehicle and saw ZC lying on the road and panicked. Bullock did not get out of his vehicle following the collision, instead driving on to his home on an intersecting street, about 100 metres away from the collision. Following Mr. Bullock’s arrival home, his wife telephoned triple zero and reported the collision at 8:08 pm. The first police arrived at the scene at about 8:17 pm. ZC died as a result of his injuries. Bullock was charged with aggravated driving without due care (maximum penalty of 1 year imprisonment) and leaving the scene of an accident after causing death (maximum penalty of 15 years imprisonment). Trial judge sentenced him to 7 months imprisonment on Count 1 and 4 years imprisonment on Count 2, to be served cumulatively. Thus, the head sentence was 4 years and 7 months imprisonment. Bullock appeals the sentence on the basis that it is manifestly excessive. Issue: Was the sentence manifestly excessive?... Read more

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