Posts of FA Faj RSSFri, 16 Dec 2022 09:05:51 GMTLee v YOUth OK Pty Ltd (No. 2) [2022] NSWSC 1691 (9 December 2022) Intro:  This is the Court’s second judgment in these proceedings. The Court gave its first judgment on 17 October 2022: Lee v YOUth OK Pty Ltd [2022] NSWSC 1356. This judgment should be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way. The proceedings were re-listed for further short argument on 3 November 2022 and then adjourned for further argument to 30 November 2022. The Court was satisfied by 3 November 2022 that no issue of mitigation of loss was available to be raised by the defendants before they left the property on 26 February 2022. At the hearing on 3 November 2022 the Court entered judgment for unpaid rent and mesne profits for the period up to 26 February 2022 together with interest from 26 February 2022 up to 3 November 2022 on the unpaid rent and mesne profits. The judgment also included a small amount based on exhibit D, representing some pre-trial expenses. And the Court then heard supplementary arguments about mitigation issues that might arise between 27 February 2022 and 30 September 2022. Facts The plaintiff, Ms. Annie Lee is the registered proprietor of two parcels of land on Barrenjoey Road in the commercial district of the Sydney beachside suburb of Newport (“the Newport property”). By an unregistered lease dated 26 September 2019, Ms. Lee demised the Newport property to the corporate first defendant, YOUth OK Pty Limited (“YOUth OK”), for a term of three years commencing on 1 October 2019 (“the lease”). The second defendant, Mr. David Hawkins, the principal of YOUth OK, guaranteed the obligations of YOUth OK under the lease. Ms. Lee claims she terminated the lease on 16 July 2020. She brings these proceedings against the defendants for possession of the Newport property, for recovery of arrears of rental alleged to be due up to the alleged date of termination, for damages under the lease or at common-law... Read more

]]>Fri, 16 Dec 2022 09:05:51 GMTRe Australian Organic Eggs Pty Ltd [2022] VSC 747 (5 December 2022) Two plaintiffs invested a total of $6 million in an organic egg-farming venture, with one of them also investing $1.5 million in an egg grading venture. They claim they invested under agreements to issue shares to them in the operating and land-holding companies, and seek orders to put them in the position they would have been in had the agreements been performed. The plaintiffs also seek the issue of units in a unit trust that holds the land where the egg-farming business was established. One plaintiff seeks orders to correct the share register of a company that operates the egg grading venture, while the other seeks orders to cancel the transfer of 50 shares and record the issue of 100 new shares to her. Facts: In early September 2018, Mr. Sun met Steven at Spring Ranch farm, where Steven introduced the idea of an egg farm investment. No specific investment details were discussed at that time. On 6 January 2019, Steven informed Mr. Sun that he and Tom had already purchased the land for the new egg farm. On 9 January 2019, a meeting was held to discuss the new egg farm investment, where $3 million was identified as the required investment, and each co-investor would receive a 25% interest in the business and land. Tom later informed Mr. Sun that the egg farm investment would be established as an organic egg farm, requiring $6 million from investors, and that a new entity for an egg grading facility was proposed. Mr. Sun agreed to invest $1.5 million for a 50% interest in the egg grading facility. Transfer forms in relation to the shares in AOE Pty Ltd, Kerang Pty Ltd, and SRO Pty Ltd were signed by Ms. Liu, but it was later revealed that existing shares were transferred instead of issuing new ones. It is unclear whether or not Ms. Liu reached an agreement for the issue of shares in those companies. Ruling: The case concerns a dispute between investors and a company over the terms of their i... Read more

]]>Thu, 15 Dec 2022 07:47:15 GMTRiva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 4) [2022] NSWSC 1624 (28 November 2022) Intro: Riva is a corporate entity and a client of the solicitors. A dispute arose between Riva and the solicitors as to the quantum of costs to which the solicitors were entitled for acting in the earlier litigation. However, Riva filed an application to appeal against the costs assessment. Facts: Riva was once a client of the solicitors in unrelated litigation. Riva is a corporate entity associated with the interests of Mr. Angelo Ferella, who was banned for five years from October 2006 from acting as a company director and in November 2006 given a suspended jail sentence for failing to comply with ASIC notices. Mr. Ferella is Riva’s manager. Mr. Ferella’s sister, Tiziana, acted as Riva’s director. A dispute arose between Riva and the solicitors as to the quantum of costs to which the solicitors were entitled for acting in the earlier litigation. The costs were assessed, and the assessment was confirmed on review by the Costs Review Panel. Riva then commenced proceedings against the solicitors in the District Court appealing against the costs assessment. On 10 August 2012, Curtis DCJ determined that $38,118.57 was the fair and reasonable amount of the legal costs for the solicitors’ legal work in the litigation for Riva. Curtis DCJ noted the parties had agreed that Riva had paid $3,268.02 on account of those costs, leaving a balance owing of $34,850.55. Curtis DCJ entered judgment for the solicitors against Riva for $38,867.02, including interest of $4,016.47. But Curtis DCJ did not make orders for the costs of the District Court proceedings appealing against the costs assessment. On 20 December 2013, Curtis DCJ d ordered that the costs in the District Court and Local Court proceedings be paid by Riva on an indemnity basis. Curtis DCJ fixed costs in both proceedings at $78,256 and ordered Riva to pay that sum to the solicitors. On 11 April 2014, the solicito... Read more

]]>Fri, 09 Dec 2022 12:38:56 GMTQVB Pharmacy Pty Ltd v Le [2022] NSWSC 1612 (1 December 2022) Intro: The plaintiffs, QVB Pharmacy Pty Ltd (“the Pharmacy”) and Peter Galettis (“Mr Galettis”), seek damages from David Le (“the first defendant”) for misleading and deceptive conduct in connection with the sale of a pharmacy in the QVB Building in Sydney (“the Business”) by the first defendant to Mr Galettis. The plaintiffs say that the first defendant made two representations during the course of negotiations leading to the sale of the Business in 2018 which are alleged to have been misleading and deceptive. Facts: Mr Galettis is a registered pharmacist. He has been registered since 1965. He has owned a number of pharmacies. In 2017, in circumstances in which there is some dispute, Mr Galettis was introduced to or put in contact with Mr Tim Peterson who was assisting the first defendant in attempting to sell two pharmacies that the first defendant owned. One of those pharmacies was the Business. Mr Galettis says that during the course of discussions with Mr Peterson, he either requested or was provided with documents relating to the operation of the Business, including: (1) Documents described as the “2017 financial statements” (which also made reference to the 2016 financial statements); and (2) Documents conveniently described as the “Other Documents”. The plaintiffs say that both the 2017 financial statements and the Other Documents were inaccurate, wrong or false. The plaintiffs say that, in providing documents which contained such inaccurate information, the first defendant engaged in misleading and deceptive conduct. It is the plaintiffs’ case that, if they had known the true position, they would not have agreed to purchase the Business at all. The plaintiffs thus pursued a “no transaction” case on the basis that the Pharmacy would never have entered into the contract with the first defendant if it had known the true position of the Business. The plaintiffs then rely on an expert valuat... Read more

]]>Fri, 09 Dec 2022 11:12:32 GMTSpedding v State of New South Wales [2022] NSWSC 1627 (1 December 2022) Intro: In this case, William Harrie Spedding was charged with sexual assault allegations. He now claims damages for malicious prosecution, misfeasance in public office, collateral abuse of process, and false imprisonment. Facts: Mr. Spedding is 71 years of age. In late 2014, Mr. Spedding became a person of interest in relation to an investigation into the disappearance of William Tyrrell from a house in Kendall, a town in New South Wales approximately 35 kilometers southwest of Port Macquarie. At that time, Mr. Spedding was living at Bonny Hills with his wife Margaret Spedding, and her four grandchildren then aged between 15 and 9 years. On 19 September 2014, Mr. Spedding attended the Port Macquarie Police Station at the request of the police who were investigating the disappearance. He provided them with his diary and work notebook. The police examined his mobile phone as well. Mr. Spedding did not again hear from the police until 20 January 2015. On 19 January 2015, search warrants were obtained by the police in respect of Mr. Spedding’s home at Wandoo Place, Bonny Hills, and his business premises in Bold Street, Laurieton. At approximately 7 am on the morning of 20 January 2015, Mr. Spedding and his wife were seated on the back verandah of their home at Bonny Hills when their driveway filled up with police cars. Detectives in plain clothes came to their front door. Mr. Spedding opened the garage door and let them in. He was informed that they were looking for William Tyrrell. The police searched the premises. Mr. Spedding later accompanied the police to his business premises in Bold Street, Laurieton. The following day, crime scene warrants were issued with respect to both premises. Mr. Spedding’s wife was taken to Port Macquarie Police Station to be interviewed. Mr. Spedding was told that he needed to find somewhere else to stay as his home had been declared a crime scene. Detective Se... Read more

]]>Fri, 09 Dec 2022 06:57:02 GMTAustralia and New Zealand Banking Group Limited v Ngo [2022] VSC 713 (22 November 2022) Intro: In this case, the primary judge refused an application by the Landlord to vary the amount of the verdict. Consequently, the tenants filed for an application for relief against forfeiture of the Lease. Facts: The Landlord terminated the Lease by notice dated 10 September 2021, relying expressly on the failure by the tenants to pay the Base Rent under the Lease. The covering letter of the notice referred to other breaches by the tenants including, but not limited to, failure to pay outgoings and provide a bank guarantee/bond security. Arguments on this application centred on the tenants’ failure to pay rent. The tenants argue that their breach was caused by the Landlord’s breach. They wish to be restored to their tenancy. They offer to pay the rent and discharge their other obligations even though they do not have an Occupation Certificate or Service Approval. They have taken some further steps toward obtaining an Occupation Certificate. Their breach in not paying rent was caused by the Landlord’s breach. The tenants are conscious of the fact that the Lease which they are to have, contains a provision (clause 20.2) that requires rent to be paid free of exchange, without any deductions or abatements, and without any deduction or set-off whatsoever other than as provided in the Lease. The Landlord put that time limits should be imposed on the tenants to obtain an Occupation Certificate and Service Approval. Issue: 1) Whether or not the application for relief against forfeiture of the Lease should be granted.Ruling: Yes. The application for relief against forfeiture is an integral part of the single wider contest. The tenants have succeeded. The true event is the substantial verdict they have obtained after a protracted and sapping dispute, in which the Landlord made no real concessions and argued that the tenants would have traded at a large loss. There is no reas... Read more

]]>Fri, 09 Dec 2022 05:01:56 GMTAustralia and New Zealand Banking Group Limited v Ngo [2022] VSC 713 (22 November 2022) Intro: This is a case where the plaintiff, Australia and New Zealand Banking Group Limited (‘ANZ’), agreed to provide, Chuc Hong Ngo (‘Ms. Ngo’), with different loans. Ms. Ngo went on default. Hence, ANZ made claims for it. Facts: On 20 January 2015, the plaintiff, Australia and New Zealand Banking Group Limited (‘ANZ’), agreed to provide the first defendant, Chuc Hong Ngo (‘Ms. Ngo’), with a business loan facility (the ‘Business Loan’) in the amount of $220,000. On 8 September 2015, ANZ agreed to provide Ms. Ngo with a residential loan facility (the ‘Residential Loan’) in the amount of $591,431.94. Earlier, on 7 January 2015, ANZ provided Ms. Ngo’s company, Jessica’s Public Pty Ltd (the ‘Company’), with an overdraft facility (the ‘Overdraft Facility’) which had an initial facility limit of $24,500. The Business Loan, Residential Loan, and Overdraft Facility are collectively referred to as the ’Facilities’ for these reasons. The funds advanced under the Business Loan were used by Ms. Ngo to purchase a commercial office suite at Unit 15, 471-475 Sydney Road, Coburg (the ‘Coburg Property’) of which Ms. Ngo is currently the registered proprietor. The Business Loan is secured by a registered mortgage over the Coburg property (the ‘Coburg Mortgage’). The funds advanced under the Residential Loan were used by Ms. Ngo to purchase a residential property at 37 Sheila Street, Preston (the ‘Preston Property’) of which Ms. Ngo is currently the registered proprietor. The Residential Loan is secured by a mortgage over the Preston Property (the ‘Preston Mortgage’). On 7 November 2018, ANZ notified Ms. Ngo that she was in default of the Business Loan and the Coburg Mortgage (‘First Default Notice’), and in default of the Residential Loan and the Preston Mortgage (‘Second Default Notice’).[1] Each default notice gave Ms. Ngo 61 days from the date of the notice to remedy the default. Ms. ... Read more

]]>Fri, 09 Dec 2022 03:44:27 GMTDPP v Arslanian [2022] VSC 736 (1 December 2022) Intro: Hiag Jacob Arslanian is charged with manslaughter. However, the jury was unable to reach a verdict on the alternative charge of manslaughter by unlawful and dangerous act. The court now asseses if Hiag Jacob Arslanian was Facts: Haig Jacob Arslanian is charged with manslaughter in relation to the death of his brother, Dikran (David) Arslanian, on 5 October 2020 in Whittington. Haig Arslanian was arraigned on 20 October 2020 and pleaded not guilty. Haig was originally charged with murder in relation to his brother’s death, and stood trial before a jury of 12 between June and July 2022. He was acquitted of murder on 18 July 2022; however, the jury was unable to reach a verdict on the alternative charge of manslaughter by unlawful and dangerous act. Following the jury verdict, the prosecution filed a new indictment on 26 September 2022 for the charge of manslaughter by unlawful and dangerous act. On 19 September 2022, the defence filed an application for trial by judge alone. An order was made on 27 September 2022 that the charge of manslaughter be heard and determined by judge alone. David died as a result of two gunshot wounds to his torso. It is not disputed that: Haig shot his brother and therefore did the act that caused David’s death; the act was conscious, voluntary and deliberate; the act was dangerous; and, unless Haig was acting in self-defence, his shooting of David constituted an unlawful assault.Issue: 1) Whether or not the accused’s response was a reasonable response in the circumstances as he perceived them. Ruling: Yes. Accordingly, I am not satisfied that the prosecution has proved beyond reasonable doubt that Haig did not believe it was necessary to do what he did to defend himself. I accept that at that time Haig believed that firing the gun was necessary to protect himself. In Haig’s mind it was the only response available to him at that point in time. Mrs Arslanian is a critical wi... Read more

]]>Fri, 02 Dec 2022 10:21:42 GMTHainaut v Queensland Police Service [2019] QDC 223 (8 November 2019)Intro: The appellant was convicted after a summary hearing in his absence of driving without a licence with the circumstance of aggravation that he did so whilst his driver's licence was suspended. He was then sentenced to a fine of $450, disqualified from driving for one month, and convictions were recorded. The appellant now appeals his conviction and sentence. Facts: The appellant was charged that on 12 September 2018, he was driving without a licence with the circumstance of aggravation that his license was suspended under the State Penalties Enforcement Act 1999 (Qld). That offence carries a maximum penalty of 40 penalty units or one year imprisonment, and a mandatory driver licence disqualification of a minimum one month but not more than six months. On the day of the hearing the appellant appeared in person, however, he refused to acknowledge his conventional surname and that he was that ‘defendant’ named in uppercase in the proceeding. He instead stated he knew a person with that “identity” but he was not that person as he was alive.The learned magistrate told the appellant that he could leave if he was not the person named as the defendant. The appellant responded that he required $5,000,000.00 compensation if he was to “accept that surname”.He maintained that the person named in the charge was a “dead entity” and inferentially he was not that person. After further exchanges, the appellant apparently departed the courtroom, and the learned magistrate proceeded to deal with the matter in his absence. The prosecution cased relied upon the evidence from Senior Constable Derek Hicks who intercepted the appellant on 12 September 2018, and conducted a licence check on him. He produced a certificate of the registrar of the State Penalties and Enforcement Registry purporting to show that the Registry had suspended the appellant’s licence at the relevant time. He testified that the notice to ... Read more

]]>Thu, 01 Dec 2022 11:10:08 GMTDCT v Palmer (No 2) [2022] VCC 2001 (22 November 2022) Intro: This is a case where the defendant as a taxpayer was assessed with taxes by the Deputy Commissioner of Taxation. However, Mr. Michael Gareth Palmer, the taxpayer refused to pay as he questioned the deputy of his authority as not being lawfully appointed Deputy Commissioner of Taxation. He also questioned the court’s jurisdiction in deciding the matter.Facts: By a writ dated 19 June 2018, the plaintiff described as “Deputy Commissioner of Taxation” sought judgment for debts said to be outstanding under various Commonwealth tax enactments in the sum of $1,587,646.19, said to be the amount payable as at 19 June 2018, together with further interest accruing thereafter under the terms of the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 of the Commonwealth. The Statement of Claim was subscribed with a facsimile signature apparently of “Robert John Ravanello ... a Deputy Commissioner of Taxation of the Commonwealth of Australia”. (Court Book (“CB”) 710, paragraph 2) The Statement of Claim sought recovery of an amount the subject of assessments of tax, said to have been made on 26 February 2018, for income tax for each financial year ending 30 June 2008 until the financial year ending 30 June 2018. Interest was sought accruing as at a series of dates, the first of which for the year ending 30 June 2008, being 5 June 2009, and for all subsequent years, in the November next succeeding the end of such financial year. These assessments were apparently default assessments, viz made by the Commissioner based upon his own judgment and investigations and without the advantage of, or reference to, income tax returns lodged by or on behalf of Mr Palmer. There were also claims for certain administrative penalties. Mr Palmer filed a document styled “Conditional Defence of Defendant” dated 23 October 2019. This document gave Mr Palmer’s email address as “MikePalmer1971@protonmail.com”. It descri... Read more

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