SUPREME COURT OF VICTORIA
RECENT JUDGMENTS BULLETIN
ISSUE NO. 13/2015
Below is a list of Victorian Supreme Court unreported judgments received in the Library from
13 to 24 July 2015. Catchwords are included when provided on the cover sheet of the
unreported judgment. Hypertext links to AustLII are inserted at the time of producing of this
page. However, there may be a two week delay before the unreported judgment is actually
loaded onto AustLII.
Enquires regarding unreported judgments can be forwarded to the Supreme Court Library at:
sclib@supremecourt.vic.gov.au or telephone (03) 9603 6282.
TABLE OF CONTENTS
COURT OF APPEAL ................................................................................................ 1
COMMERCIAL COURT .......................................................................................... 5
COMMERCIAL & EQUITY DIVISION .................................................................. 6
COMMON LAW DIVISION .................................................................................... 7
CRIMINAL DIVISION ........................................................................................... 12
COURT OF APPEAL
BUILDING CONTRACT - Principles for construction of commercial contracts Relationship between building contract and side deed - Meaning of phrase 'actual’
cost payable' - Judge erred in interpreting phrase as meaning 'costs actually paid' Application for leave to appeal granted and appeal allowed.
BUILDING CONTRACT - Principles for implying a term into a commercial contract
- Judge erred in implying a term requiring builder to provide to principal documents
evidencing payment to subcontractors.
BUILDING CONTRACT - Principles for determining when a term of a contract is to
be inferred - Judge correctly held that no term is to be inferred requiring builder to
provide to principal documents evidencing payment to subcontractors.
Grocon Constructors (Victoria) P/L (ACN 148 006 624) v APN DF2 Project 2 P/L
(ACN 128 883 581) & Grocon (Scots Church) P/L (ACN 143 199 491)
Santamaria JA, Kyrou JA, and McLeish JA
[2015] VSCA 190
23/07/2015
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CONTRACT - Breach of contract - Partnership agreement - Expulsion from
partnership following allegations that partner guilty of criminal and unlawful conduct
and breaches of fiduciary duties - Claim for damages for wrongful repudiation of
partnership agreement - Claim that partnership failed to comply with implied
contractual obligation of procedural fairness in exercising powers of expulsion Damages - Causation.
PRACTICE - Whether trial judge erred in permitting plaintiff to 'split' trial to enable
plaintiff to lead evidence in rebuttal on certain issues - Protean (Holdings) Ltd v
American Home Assurance Co [1985] VR 187, applied - French v Triple M [2008]
VSC 548; S, DJ v Channel Seven (2009) 260 LSJS 287, considered - Trial judge
correct to 'split' trial - Plaintiff otherwise obliged to prove a negative without
knowledge of basis of case against him.
EVIDENCE - Privilege against self-incrimination - Whether by commencing
proceedings raising issues of plaintiff's allegedly incriminating conduct plaintiff
waives privilege in respect of those issues - Origins and history of privilege against
self-incrimination, discussed - Privilege against self-incrimination available to
plaintiff in civil proceedings at common law - Song v Ying (2010) 79 NSWLR 442;
Rowell v Larter (1986) 6 NSWLR 21; Chong v CC Containers Pty Ltd [2015] VSCA
137, considered - Evidence Act 2008 s128.
Clayton Utz (A firm) v Dale, Christopher Antony
Ashley JA, Tate JA, and Ferguson JA
[2015] VSCA 186
23/07/2015
CONTRACT - Error by trial judge on liability - No relevant findings on breach or
damages - Damages as particularised bound to fail - Fink v Fink (1946) 74 CLR 127
and JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 applied.
PRACTICE & PROCEDURE - No obligation on trial judge to examine material
tendered but not referred to in evidence or submissions.
APPEAL - Damages for breach of contract reformulated on appeal - Whether order
for remittal should be made - Reformulation a significant departure from case as
pleaded and run - Unsatisfactory and inherently unfair to respondent - Dare v Pulham
(1982) 148 CLR 658, Banque Commercial SA, en liq v Akil Holdings Ltd (1990) 169
CLR 279, Perestrello E Companhia Limitada v United Paint Co Ltd [1969] 1 WLR
570 applied - No remittal - Appeal dismissed.
COSTS - Costs of appeal - Both parties succeeded to some extent - Critical issues on
both sides raised late - Each party bear own costs of appeal.
COSTS - Costs of trial - Outcome of trial unaltered - Calderbank offer rejected Solicitor/client costs ordered by trial judge - Whether further cause of action added
during the trial should be taken into account in assessing reasonableness of rejection
of offer - Time at which reasonableness to be assessed - Order for costs maintained Leave to appeal costs order refused.
Brirek Industries P/L (ACN 005 807 090) v McKenzie Group Consulting (Vic) P/L
(ACN 093 211 977) (No. 2)
Redlich JA, Whelan JA, and Santamaria JA
[2015] VSCA 185
22/07/2015
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CRIMINAL LAW - Appeal - Sentence - Community correction order (CCO) Combination sentence - Recklessly causing serious injury - Sentenced to 2 years'
imprisonment with 2 year CCO - Judge failed to fix non-parole period - Statutory
requirement to do so - Crown concession of error - Resentenced to 18 months'
imprisonment and 2 year CCO with additional conditions - Sentencing Act 1991 s11,
pt 3A.
Deng-Mabior, Emmanual v The Queen
Maxwell P, Weinberg JA, and Kyrou JA
[2015] VSCA 179
17/07/2015
CRIMINAL LAW - Appeal - Sentence - Trafficking in a commercial quantity of a
controlled drug contrary to s302.2(1) of the Criminal Code (Cth) - Sentenced to 9
years' imprisonment with non-parole period of 7 years - Trafficking in a drug of
dependence (large commercial quantity) contrary to s71 of the Drugs Poisons and
Controlled Substances Act 1981 (Vic) - Sentenced to 7 years' imprisonment with nonparole period of 5 years - State sentence ordered to commence 5 years after
commencement of Commonwealth sentence - Total effective sentence of 12 years
with appellant required to serve 10 years before being eligible for parole - Whether
sentence manifestly excessive - Whether non-parole period of Commonwealth
sentence manifestly excessive - Whether order for cumulation manifestly excessive Delay - Delay during period where appellant changed plea to not guilty Consequences of delay - State offence committed while on bail for Commonwealth
offence - Totality - Sentence not manifestly excessive - Appeal dismissed
Sergi, Antonio v Director of Public Prosecutions (Cth) & Director of Public
Prosecutions (Vic)
Maxwell P, Redlich JA, and Beach JA
[2015] VSCA 181
21/07/2015
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CRIMINAL LAW - Appeal - Sentence - Trafficking in a drug of dependence - Large
commercial quantity - Sentence of 11 years' imprisonment with non-parole period of 8
years - Parity - Whether sentence infringed principles of parity in relation to sentences
imposed on 2 other offenders - Parity reasoning requiring modification in respect of 1
of 2 other offenders who was not a co-offender of the appellant - Insufficient disparity
between the appellant's sentence and those of the 2 other offenders so as to give the
appearance justice has not been done - Appeal dismissed
Le, Thi Nho Em v The Queen
Redlich JA and Beach JA
[2015] VSCA 183
21/07/2015
CRIMINAL LAW - Appeal successful, conviction quashed and new trial ordered Appeal Costs Act 1998 - Discretion whether to grant indemnity certificate - Conduct
of trial on behalf of the appellant - Whether appellant should be penalised for manner
in which trial was conducted - Extent to which Board may consider costs of appeal
and of new trial 'to have been reasonably incurred' - Appeal Costs Act 1998, s14
Piccolotto, Jason v The Queen (No. 2)
Redlich JA, Santamaria JA, and Beach JA
[2015] VSCA 182
21/07/2015
CRIMINAL LAW - Sentence - Application for leave to appeal - Multiple charges of
criminal damage, theft and attempted theft - Significant damage caused - Aggregate
sentence of 4 years and 5 months' imprisonment with non-parole period of 2 years and
11 months - Whether sentence manifestly excessive - Manifest excess not reasonably
arguable - Co-offender sentenced in respect of lesser number of offences to aggregate
sentence of 3 years and 3 months with non-parole period of 21 months - Parity Whether parity principles infringed - Parity complaint not reasonably arguable - No
reasonable prospect that less severe sentence would be imposed - Application for
leave to appeal refused
Harris, Marc Stanton v The Queen
Beach JA
[2015] VSCA 192
23/07/2015
CRIMINAL LAW - Sentence - Application for leave to appeal - Theft - Using a false
document - Sentenced to total effective sentence of 2 years' imprisonment (12 months
to be served cumulatively upon a previous sentence of 2 years and 3 months) with
previously ordered non-parole period extended by 8 months - Delay - Consequences
of delay - Totality - Whether totality principle infringed - Whether order for
cumulation infringed totality principle - Alleged errors not reasonably arguable - No
reasonable prospect that less severe sentence or orders would be imposed Application for leave to appeal refused
Dalton, Allan Rae v The Queen
Beach JA
[2015] VSCA 189
22/07/2015
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CRIMINAL LAW - Sentence - Five armed robberies - Youthful offender - Child
offender at time of first two armed robberies - Whether sentencing judge wrongly
excluded general deterrence as a sentencing consideration in respect of all charges CNK v The Queen (2011) 32 VR 641; R v Mills [1998] 4 VR 235; Azzopardi v The
Queen (2011) 35 VR 43, considered - Whether sentence manifestly inadequate Importance of rehabilitation for a very youthful offender - Sentence imposed lenient
but not outside the range - Appeal dismissed. CRIMINAL LAW - Whether Director
must establish manifest inadequacy in order to succeed on a ground alleging specific
error - Criminal Procedure Act 2009 s289 - Need to prove manifest inadequacy
doubted.
Director of Public Prosecutions v Ghazi, Abdullah
Redlich JA, Santamaria JA, and Beach JA
[2015] VSCA 188
21/07/2015
COMMERCIAL COURT
CONTRACT - Construction - Performance - Breach - Frustration - Purported
termination - Liability determined - Issues concerning damages deferred Compulsory mediation ordered - Civil Procedure Act 2010 (Vic), s7(2)(c)(ii), s66(1);
Supreme Court (General Civil Procedure) Rules 2005 (Vic), r50.07(1).
Idameneo (No 123) P/L (ACN 002 968 185) v Ashraf, Sohail & Anor
Elliott J
[2015] VSC 317
03/07/2015
CONTRACT - Repudiation - Parties entered into a dispute resolution agreement for
the plaintiff to sell to the defendants the plaintiff's interest in a business run by the
plaintiff and the defendants - Under the dispute resolution agreement an independent
expert was appointed to resolve differences between two valuers of the business,
appointed respectively by each party - The plaintiff unilaterally terminated the
appointment of the independent expert on the basis that the independent expert
breached the terms of his appointment - Whether independent expert had breached the
terms of his appointment - Whether plaintiff had repudiated the dispute resolution
agreement in unilaterally terminating the appointment of the independent expert Whether defendant entitled to accept the termination of the appointment of the valuer
by the plaintiff as a termination of the dispute resolution agreement - Held the dispute
resolution agreement was validly terminated
In the Matter of Venture Capital Group P/L (ACN 111 119 914) (in its own right
and as trustee of the VCG Trust) Between Alphater Consulting Engineers P/L
(ACN 107 954 629) Miles Rozman & Ors
Robson J
[2015] VSC 319
15/07/2015
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CORPORATIONS - Application to set aside statutory demand under s459G of the
Corporations Act 2001 (Cth) on basis of genuine dispute - Whether service by
facsimile transmission of sealed copy of application and accompanying affidavit in
support is valid service - Held to be valid service, Seventh Cameo v Holdway Pty Ltd
followed - Director of plaintiff signed deed containing provisions for payment of very
high rates of interest which were contended to be penalties - Toll (FGCT) Pty Limited
v Alphapharm Pty Limited and others (2004) 219 CLR 165 and Kellas-Sharpe v
PSAL Limited [2012] QCA 371 applied - No genuine dispute - Application
dismissed.
In the Matter of Greenmint P/L (ACN 158 682 436) v O'Keeffe, Mark
Gardiner AsJ
[2015] VSC 326
13/07/2015
CORPORATIONS - External administration - Application by special purpose
liquidator for determination of his remuneration
In the Matter of Traditional Values Management Ltd (In Liquidation) (Special
Purpose Liquidator Appointed) (ACN 055 106 100) and Hewitt, Andrew Stewart
Reed in his capacity as Special Purpose Liquidator of Traditional Values
Management Limited (in liquidation) (Special Purpose Liquidator appointed) (ACN
055 106 100)
Gardiner AsJ
[2015] VSC 338
15/07/2015
CORPORATIONS - Winding up - Statutory demand - Application to set aside
statutory demand - Discretion to set aside statutory demand for "some other reason" Corporations Act 2001 (Cth) s459J(1)(b) - Whether the plaintiff secured the debt the
subject of the statutory demand to the reasonable satisfaction of the defendant Whether the defendant acted unconscionably in making a misleading and deceptive
representation regarding securing the total amount of the debt - Taxation
Administration Act 1997 (Vic) s117(1) - Application dismissed.
Frontlink P/L v The Commissioner of State Revenue, Victoria
Efthim AsJ
[2015] VSC 329
09/07/2015
COMMERCIAL & EQUITY DIVISION
CORPORATIONS - Application to set aside statutory demand - Whether there is a
genuine dispute - Plaintiff executed deed prepared by its director in respect of loan
advance - Contended that advance not made to plaintiff but by its director - No
genuine dispute - Application dismissed, s459G, s459H Corporations Act
Boriop P/L (ACN 006 163 971) v Moussi, Sophie
Gardiner AsJ
[2015] VSC 345
20/07/2015
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PRACTICE AND PROCEDURE - Application for a pseudonym order - Application
refused - No point of principle
Ex parte Chep Australia Ltd (ACN 117 266 323)
Bongiorno JA
[2015] VSC 331
09/07/2015
COMMON LAW DIVISION
ADMINSTRATIVE LAW - Appeal from decision of the Victorian Civil and
Administrative Tribunal (VCAT) - Leave to appeal - Victorian Civil and
Administrative Tribunal Act 1997, s148 - Planning and Environment Act 1987, s69
and s81 - Whether the VCAT misconstrued the principles governing the exercise of
discretion to refuse to extend a planning permit - Kantor v Murrindindi Shires Council
(1997) 18 AATR 285 considered
D'Agostino, Richard Charles, D'Agostino, Rocky Paul v Greater Shepparton City
Council
Zammit J
[2015] VSC 332
14/07/2015
ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal Application for leave to appeal to the Supreme Court - Whether questions of law Challenges to findings of fact - Whether real or significant argument that VCAT fell
into error - No real or significant argument on a question of law on appeal - Victorian
Civil and Administrative Tribunal Act 1998, s148(1)(b).
LANDLORD AND TENANT - Notice to vacate - Tenant endangers the safety of
other occupiers - Residential Tenancies Act 1997, s244, s319 and s322
Fauth, Paul v The Director of Housing
Derham AsJ
[2015] VSC 320
14/07/2015
COSTS - Where plaintiffs sought to propound informal document as deceased's
informal will, alternatively, the deceased's earlier duly executed will - Where
application to propound informal document refused - Where parties to consider costs
of application ensuring that costs are reasonable and proportionate - Where plaintiffs
did not address concerns raised by the Court - Civil Procedure Act 2010, s24 - Yara
Australia Pty Ltd v Oswal [2013] VSCA 337.
WILLS AND ESTATES - Where plaintiffs appointed administrators of estate under a
limited grant - Powers to administer the estate under limited grant - Where Court
requires explanation of exercise of powers - Where plaintiffs did not provide
explanation - Supreme Court (Administration and Probate) Rules 2014, r5.02
Robinson, James William and Raleigh, Simon John v Jones, Jennifer Lee and
Victorian Animal Aid Trust (No 2)
McMillan J
[2015] VSC 334
17/07/2015
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DISCOVERY - Documents possessed by party subject to implied undertaking of use
only for purposes of proceeding in another court - Whether court in separate
proceeding can and should order disclosure for purposes thereof - Civil Procedure Act
2010 (Vic) s7, s8, s9, s55, Competition and Consumer Act 2010 (Cth) s155
Boral Resources (Vic) P/L & Ors v Construction, Forestry, Mining and Energy
Union & Australian Competition and Consumer Commission (Intervener) (Ruling
on Discovery)
Bell J
[2015] VSC 352
22/07/2015
JUDICIAL REVIEW - Administrative Law - Certiorari - Mandamus - Estoppel Issue estoppel - General Civil Procedure (Rules) 2005, O 56 – Magistrates’ Court Act
1989, s109 - Serious injury - Application for leave - Weekly compensation payments Accident Compensation Act 1985, s45, s134AB(16)(b) - Section 134AB(19A) Referral of medical questions - Opinion of Medical Panel upon reference Interlocutory decision - Final decision - Final and conclusive decision on the merits Whether a decision in a leave application is final and conclusive
Dean's P/L (t/a Bellbird Kid-Z Educational Resources) v Laratae, Kassandra and
the Magistrates' Court of Victoria
Zammit J
[2015] VSC 341
17/07/2015
JUDICIAL REVIEW AND APPEALS - Appeal from Magistrates' Court Magistrates' Court Act 1989 (Vic), s109 - Question of law must arise - Tomasevic v
Travaglini (2007) 117 VR 100 considered and applied - Procedural fairness - Selfrepresented litigant - Civil Procedure Act 2010 (Vic), s7 - Magistrates' Court General
Civil Procedure Rules 2010 (Vic) r1.21 and r1.24 - Inadequacy of reasons - Dimatos v
Coombe & Ors [2011] VSC 619 considered - Matter remitted for rehearing
Waddington, Nigel v Kha, David
Daly AsJ
[2015] VSC 339
22/07/2015
JUDICIAL REVIEW AND APPEALS - Appeal from VCAT under s148 of the
Victorian Civil & Administrative Tribunal Act 1998 (Vic) - Costs - Sections 109, 112,
113 and 114 of Victorian Civil & Administrative Tribunal Act 1998 (Vic) - Enquiry
required to be made under s112(3)(a) when determining whether a qualifying offer is
more favourable than the orders of the Tribunal - Meaning of the phrase 'the costs the
Tribunal would have ordered at the time the offer was made' - Metricon Homes Pty
Ltd v Sawyer [2013] VSC 518 applied in part and distinguished in part - Applicability
of principles in Calderbank v Calderbank (1975) 3 All ER 333 to settlement offers
made in proceedings at VCAT.
Hopkins, John v Hopkins, Joshua (No. 2)
Daly AsJ
[2015] VSC 50
02/03/2015
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PAYMENT OUT FROM FUNDS IN COURT - Competing claims for funds being
the residue of mortgagee sale - Plaintiff the wife of the former registered proprietor Plaintiff claims an interest by way of trust as to one half of his beneficial interest and
a secured interest by way of loan and charge in respect of the other half - Whether the
plaintiff's claimed interests were created - Whether the plaintiff's claimed interests, if
they were created, were shams - Construction of the terms of the charge taken by the
first and second defendants - Calculation of the amount secured by that charge Whether the plaintiff gave notice of her interests to the first and second defendants Whether the first defendant gave notice of the charge taken by the first and second
defendants to the plaintiff - Consideration of the interest acquired by the third
defendant as purchaser at a sheriff's auction - Whether the plaintiff's interests should
be postponed to those of the defendants by reason of her failure to lodge a caveat or
untruthful evidence in relation to disclosure - Doctrine of 'unclean hands' - The
plaintiff's claimed interest by way of trust found to exist and not be a sham - The
plaintiff's claimed interest by way of loan found to be a sham - Defendants failed to
show that the plaintiff's interest by way of trust should be postponed to that of the first
and second defendants' by way of charge, or to that of the third defendant as purchaser
at the sheriff's auction - Sharrment Pty Ltd and Ors v Official Trustee in Bankruptcy
(1988) 18 FCR 449; Jacobs v Platt Nominees Pty Ltd and Ors [1990] VR 146; Black
Uhlans Incorporated v New South Wales Crime Commission and Ors [2002] NSWSC
1060 considered and applied
Milenkovic, Jasmina v Belleli, Jerry; King, Brendan & Legal Chicks P/L: Belleli,
Jerry; King, Brendan & Legal Chicks P/L v Milenkovic, Jasmina (by counterclaim)
Lansdowne AsJ
[2015] VSC 349
20/07/2015
PRACTICE AND PROCEDURE - Application pursuant to r47.04 of the Supreme
Court (General Civil Procedure) Rules 2005 and/or s49 of the Civil Procedure Act
2010 (Vic) for the trial of preliminary questions where judicial determination of facts
required - Whether all facts necessary for determination of preliminary questions
clearly identified and ascertainable - Whether material or evidence for the
determination of question of fact presently before the Court are such that the question
of fact can be properly determined - Whether significant contested factual issues
involved in the determination of the question of fact - Whether discovery (of
documents and by interrogation) necessary before any consideration of a trial of
preliminary questions - Whether provisions of Civil Procedure Act 2010 (Vic) affects
the application of the pre-existing law as to the trial of preliminary questions Whether the utility, economy and fairness to the parties by the trial of the preliminary
questions is beyond question - Application refused - Jacobson v Ross [1995] 1 VR
337; Murphy v State of Victoria [2014] VSCA 238
Vale, Irwin v Daumeke, Amani & Ors (according to attached Schedule of Parties)
Derham AsJ
[2015] VSC 342
17/07/2015
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PRACTICE AND PROCEDURE - Costs - Unsuccessful application by plaintiffs to
examine a non-party before trial under r40.12 and r41.01 of the Supreme Court
(General Civil Procedure) Rules 2005 - Successful objection by defendant and Legal
Services Commissioner to the plaintiffs inspecting subpoenaed documents Applications made in an appeal from a decision of the Legal Services Board - General
rule as to costs modified by Legal Profession Act 2004, s3.6.23(7) - No order for cost
is to be made on an appeal unless the Court is satisfied that an order for costs should
be made in the interests of justice - Whether costs should be awarded in favour of the
Board - Whether costs should be ordered in favour of the Commissioner as an
objector to the inspection of subpoenaed documents - Impact of the Civil Procedure
Act 2010, s20 and s25 - The Solicitors' Trust v Oxenbould [2013] TASFC 2
De Simone, Guiseppe & Ors (according to the schedule attached) v Legal Services
Board; Brereton, Michael Richard & Ors (according the schedule attached)
[Ruling]
Derham AsJ
[2015] VSC 286
19/06/2015
SETTLED LAND ACT 1958 (Vic) - Application by tenant for life for sale of
property - Sale opposed by remaindermen - Whether property is 'settled land' within
the meaning of s8 of the Settled Land Act 1958 (Vic) - Whether property is subject to
a 'trust for sale' within the meaning of s18 of the Property Law Act 1958 (Vic) Whether applicant a tenant for life or holds a mere right of residence - Royal
Melbourne Hospital & Ors v Equity Trustees Ltd (2007) 18 VR 469 and Re Hoppe
deceased [1961] VR 381 considered and applied - Relevant discretionary
considerations - Application granted.
Bothmann, Christa v White, Clive William (as one of the Executors of the Estate of
Jackle, Karl Heinz Anton, deceased) and Jackle, Marcus Julius
Daly AsJ
[2015] VSC 247
03/06/2015
TESTATOR'S FAMILY MAINTENANCE - Application for further provision by
cousin against a cousin's estates - Provenance of deceased cousin's estate - Claimant
disabled son deprived of inheritance from widowed mother - Deceased cousin
inherited instead with promise to provide reasonable care and benefit to deprived
cousin - Whether transmission of mother's moral obligation - Extent of moral
responsibility as between cousins in the circumstances - Substantial estate - Bequest
of $250,000 life fund - Adequacy of provision for proper maintenance and support Significance of claimant's disability pension in the assessment - Administration and
Probate Act 1958 (Vic) s91
Wadsley, Robert William (by his litigation guardian, Pamela McCredden) v
Sutherland, Vicki; Connolly, Anna Colette (as executrices of the will of Heather
Margery Robinson) & Box, Steven Michael: In the matter of Part IV of the
Administration and Probate Act 1958: In the matter ofthe estate of Heather
Margery Robinson, deceased
Mukhtar AsJ
[2015] VSC 344
22/07/2015
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TORT - Negligence - Nuisance - Duty of care and breach of duty admitted - Leak of
petroleum hydrocarbons contaminating the groundwater beneath the plaintiffs' land Plaintiffs' land undeveloped - Application for mandatory injunction abandoned Dispute as to the appropriate measure of damages - Loss of opportunity involving
profits for the development of land - Damages for the diminution in value of land Pipelines Act 2005.
DAMAGES - Diminution in value - Change in market value of the land caused by
contamination from the leak - Diminution in value accepted as the appropriate
measure of damages.
DAMAGES - Loss of opportunity - Did an opportunity to develop the land
residentially exist - Was that opportunity lost because of the contamination from the
leak - Valuation of the alleged opportunity - Sellars v Adelaide Petroleum NL (1994)
179 CLR 332, applied. DAMAGES - Assessment of claims for loss of profit
Winky Pop P/L (ACN 082 744 769) and OR Australia P/L (ACN 073 102 520) v
Mobil Refining Australia P/L (ACN 004 300 163) and The State of Victoria
Digby J
[2015] VSC 348
13/07/2015
WILLS AND ESTATES - Informal will admitted to probate did not annex schedule
of testator's trusts referred to in Will - Bequests to testator's children subject to
abatement if schedule incorporated into Will - Application for rectification of Will to
annex schedule - Application for declaration that schedule be incorporated by
reference - Pre-conditions for incorporation by reference of schedule satisfied - Wills
Act 1997 (Vic) s31
Fast, John Claude and Ors v Rockman, Mathew Myer and Ors
McDonald J
[2015] VSC 337
22/07/2015
WILLS & ESTATES - Executor's commission - Where the will does not provide for
commission - Where defendants initially sought commission at 5 per cent in modest
estate - Where defendants seek commission at 2 per cent trial - Commission allowed
at 1 per cent on sale proceeds of deceased's home - Administration and Probate Act
1958, s65 - Supreme Court (Administration and Probate) Rules 2004, Order 10 - In
the Estate of Stone (deceased); Patterson v Halliday [2003] VSC 298. COSTS Where plaintiff beneficiary sought information from defendants concerning estate Where defendants fail to provide timely and adequate information - Where plaintiff
seeks distribution of estate - Disputes between parties adversarial - Defendants seek
costs against plaintiff - Plaintiff seeks costs be taxed with directions for certain
disallowances - Where costs disproportionate to the issues raised - Where defendants
have no client costs agreements - Where defendants solicitor's invoices lack sufficient
detail - Supreme Court (General Civil Procedure) Rules 2005, r63.07 - Supreme Court
Act 1986, s24 - Hall v Carney (No 2) [2012] SASCFC 105
Richards, Adrian Brent v Richards, Garry Ashley and Richards, Linda Dawn
McMillan J
[2015] VSC 335
17/07/2015
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WILLS AND ESTATES - Whether deceased left informal will - Whether copy
thereof should be admitted to probate - Where executor has renounced probate Whether beneficiary should be granted letters of administration - Wills Act 1997
(Vic) s9(1)
Scott, Justin Campbell Douglas v Romanoff, Olga Andreevna
Bell J
[2015] VSC 343
15/07/2015
CRIMINAL DIVISION
CRIMINAL LAW - Jury trial - Accused charged with murder - Rulings: (1)
Admissibility of evidence that, some hours before killing, accused called deceased "a
dog" and put him into boot of car for a period before releasing him - Evidence
admissible as going to motive and animus - Evidence Act 2008 (Vic), s137; (2)
Application that WR, a major prosecution witness, give evidence via video-link from
a remote facility - Risk that witness may come into contact with accused during
prisoner movements - Concerns met by assurances of Corrections Victoria Application refused - Evidence (Miscellaneous Provisions) Act 1958 (Vic), s42E; (3)
Application that TM, another major prosecution witness, give evidence via video-link
from remote facility - Concerns that witness, and those protecting or near him, at risk
of harm in moving to and from Court - Application granted; (4) Application by
accused to discharge jury without verdict - Deceased's mother upset during
prosecution opening - Application refused; (5) Admissibility of evidence of NB that
AS and MA told him that WR told them he killed deceased (which AS and MA deny
hearing from WR, and WR denies saying) - Exceptions to rule against hearsay Whether NB's evidence admissible to prove (a) inadequacy of police investigation
and/or (b) prior inconsistent statements by AS and MA - Whether, if admitted, NB’s
evidence also can go to prove (c) that WR said he killed deceased and (d) that he
killed deceased - Whether NB’s evidence nevertheless should be excluded on the
basis that its probative value would be substantially outweighed by the danger that it
might be misleading or confusing or result in an undue waste of time - Whether NB's
evidence should be confined in its use to purposes (a), (b) and (c) - Whether NB's
evidence should be subject of an unreliability warning - NB's evidence admitted for
purposes (a), (b) and (c), but not (d), and subject to unreliability warning - Evidence
Act 2008 (Vic), s55, s59, s60, s135, s136 & s165; R v Singh-Bal (1997) 92 A Crim R
397; Lee v The Queen (1998) 195 CLR 594; (6) Directions on murder by joint
criminal enterprise (at common law) - Whether agreement must include a common
intention, between accused and perpetrator of killing, to kill or cause really serious
injury or whether it is sufficient (a) that the agreement be to commit the acts which
caused death and (b) that the accused have, but that the perpetrator need not have,
murderous intent at the relevant time - Proof of common murderous intent not
required - Osland v The Queen (1998) 197 CLR 316; Likiardopoulos v The Queen
(2012) 247 CLR 265; McEwan & Ors v The Queen [2013] VSCA 329
The Queen v Spence, Harvey (Rulings)
Croucher J
[2015] VSC 322
13/07/2015
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CRIMINAL LAW - Sentence - Intentionally cause serious injury in circumstances of
gross violence - Joint criminal enterprise - Use of an offensive weapon - continued to
cause serious injury after victim incapacitated - Methamphetamine use and addiction Undertaking to give evidence in the trial of co-accused - Plea of guilty - Remorse
inferred - Utilitarian discount - Convicted and sentenced to 5 years' imprisonment
with a minimum period before parole eligibility of 3 years and 3 months.
The Queen v Ravenhorst, Karl Peter
T Forrest J
[2015] VSC 308
05/06/2015
CRIMINAL LAW - Sentence - Murder - Accused suspected deceased of informing on
him to police about illicit drug activities - Accused drove deceased, with others, to
rural location on pretext - Accused dragged deceased into shed and directed PM to
tape his hands behind his back and gag him with tape - At direction of accused, at
gunpoint, TM placed plastic bag over deceased's head but refused to tie bag - PM
instead tied plastic bag - Deceased suffocated to death - Intentional killing - Accused
directed PM and TM to burn body, who did so only partly - Body ultimately burnt to
ashes by WR and AC - Ashes disposed of by WR and others - Very serious example
of murder - No remorse - No prior convictions for violence alleged - Moderate
reduction in moral culpability on account of effects of acquired brain injury Reasonable prospects of rehabilitation - Importance of general deterrence, specific
deterrence, just punishment, denunciation and rehabilitation - Sentence of 27 years’
imprisonment with non-parole period of 22 years
The Queen v Spence, Harvey
Croucher J
[2015] VSC 321
13/07/2015
CRIMINAL LAW - Sentence - Murder - Joint criminal enterprise - Objective
criminality high - Although offender neither initiator nor driving force of agreement,
offender was active participant in lengthy, brutal and cowardly attack - Moral
culpability high and aggravated by burning of deceased's body - Methamphetamine
use and addiction - Some evidence of remorse - Plea of guilty - Utilitarian discount Discount for undertaking to give Crown evidence against co-accused - Convicted and
sentenced to 10 years nine months' imprisonment with a minimum period before
parole eligibility of eight years and three months.
The Queen v Lewis, Darren
T Forrest J
[2015] VSC 252
17/03/2015
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