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Archive for December, 2009

Bofinger v Kingsway Group Limited [2009] HCA 44

Thursday, December 10th, 2009

Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009)

Last Updated: 13 October 2009

Guarantee and indemnity – Surety – Right to subrogation to securities – Three separate loans made to company, each secured by mortgage over company’s property – Appellants guarantors of each loan – Appellants sold personal properties and used proceeds to reduce first loan – First mortgagee exercised power of sale over company’s property to satisfy outstanding amounts owing under first loan and transferred surplus to second mortgagee – Whether appellants have right to subrogation to securities in priority to puisne mortgagees – Whether appellants’ right to subrogation excluded by terms of guarantees to puisne mortgagees – Whether rule in Otter v Lord Vaux (1856) 2 K & J 650 [1856] EngR 694; [69 ER 943] applied to prevent appellants from exercising right to subrogation or should be extended to so apply – Whether transfer of surplus required to be unconscionable for doctrine of subrogation to apply.

 Equity – Remedies – Constructive trust – Nature of constructive trust – Surplus transferred by first mortgagee to second mortgagee – Whether first mortgagee constructive trustee of surplus – Whether obligation to account. (more…)

Sydney Water Corporation v Turano [2009] HCA 42

Thursday, December 10th, 2009

Sydney Water Corporation v Turano [2009] HCA 42 (13 October 2009)

Last Updated: 13 October 2009

Negligence – Duty of care – Liability of statutory authority – Water main installed under statutory power – Altered subsoil drainage leading to compromise of root system of roadside tree – Approximately 20 years later tree fell on passing vehicle during storm resulting in death to an occupant and personal injury to other occupants of vehicle – Whether death and injury a reasonably foreseeable consequence of installation of water main – Significance of temporal relation between allegedly negligent conduct and injury occurring – Significance of statutory authority’s lack of control over the tree in interval between installation of water main and injury – Section 43A of Civil Liability Act 2002 (NSW) addressing civil liability in tort of public or other authorities exercising a “special statutory power” not relied upon. (more…)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Thursday, December 10th, 2009

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (30 September 2009)

Last Updated: 30 September 2009

Taxes and duties – Stamp duty – Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew – Section 56N(2)(b) of Taxation (Administration) Act (NT) (“Act”) requires valuation for assessment of duty of “all land” to which corporation is entitled at time of acquisition – Section 4(1) of Act provides “land” includes “a lease of land” but that “‘lease’ … does not include … an option to renew a lease” – Whether “land” in s 56N(2)(b) includes option to renew lease. (more…)

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

Thursday, December 10th, 2009

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

Last Updated: 23 September 2009

Workers’ compensation – Injury resulting in permanent impairment – Under s 24 of Safety, Rehabilitation and Compensation Act 1988 (Cth), where “an injury to an employee results in a permanent impairment”, respondent liable to pay compensation “in respect of the injury” – Amount of compensation fixed by degree of permanent impairment resulting from injury as assessed under Guide to the Assessment of the Degree of Permanent Impairment (“Guide”) – Guide provides that “[w]here two or more injuries give rise to the same impairment a single rating only should be given” – Appellant previously compensated for injury to left knee resulting in permanent impairment – Whether appellant entitled to compensation for separate injury to right knee resulting in permanent impairment to same degree – Whether “degree of permanent impairment” refers to impairment of whole person or impairment to particular part of person’s body. (more…)

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Thursday, December 10th, 2009

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39Last Updated: 24 September 2009

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 – Whether failure to inquire constituted jurisdictional error.

 Immigration – Refugees – Review by RRT – Where RRT received allegation that documents provided by visa applicant were “fake & forged”, invited applicant to comment in writing, but failed to invite him to further hearing – Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 – Whether allegation of forgery raised new “issue” within meaning of Migration Act 1958, s 425. (more…)

Minister for Immigration and Citizenship v SZJGV [2009] HCA 40

Thursday, December 10th, 2009

Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 (30 September 2009)

Last Updated: 30 September 2009

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Where RRT not satisfied that visa applicants engaged in Falun Gong-related activities in Australia otherwise than for the purpose of strengthening claims to be refugees – Where RRT drew adverse inferences about visa applicants’ credibility from visa applicants’ participation in Falun Gong-related activities in Australia – Whether Migration Act 1958 (Cth), s 91R(3) permitted RRT to use evidence of conduct in Australia to make findings adverse to visa applicants’ claims to be refugees. (more…)

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37

Thursday, December 10th, 2009

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 (23 September 2009)

Last Updated: 23 September 2009

Immigration – Refugees – Review of visa application before Refugee Review Tribunal (“RRT”) – First respondent appointed third respondent as his “authorised recipient” to receive documents in connection with his review – Section 441G(1) of Migration Act 1958 (Cth) (“Act”) required RRT to give review documents to authorised recipient instead of first respondent – RRT gave a notice inviting the respondents to attend a hearing to first respondent but not to authorised recipient – All respondents attended the hearing and no unfairness or prejudice arose from non-compliance with s 441G(1) of Act – Whether non-compliance with procedural steps in s 441G of Act compels conclusion that decision is invalid – Whether circumstances amount to denial of natural justice. (more…)