CONTRACT - Breach - Loan note - Where term of contract between borrower and two lenders required repayment of loan into account nominated by both lenders - Where borrower repaid money into account of one lender without obtaining nomination from both lenders - Whether term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt - Whether other lender waived breach of contract term by prosecuting earlier proceedings against recipient lender - Whether abuse of process for lender subsequently to proceed against borrower and guarantor for breach of contract.
CONTRACT - Breach - Loan note - Where term of contract between borrower and two lenders required repayment of loan into account nominated by both lenders - Where borrower repaid money into account of one lender without obtaining nomination from both lenders - Whether term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt - Whether other lender waived breach of contract term by prosecuting earlier proceedings against recipient lender - Whether abuse of process for lender subsequently to proceed against borrower and guarantor for breach of contract.
WORDS AND PHRASES - "abuse of process", "account nominated", "affirmation", "borrower", "breach of contract", "breach of duty", "condition precedent", "consequential loss", "creditor", "debtor", "defective performance", "direction", "discharge of a debt", "double operation", "guarantor", "joint account", "jointly and severally", "lender", "liability for breach", "loan contract", "loan note", "mitigation of loss", "negative duty", "note certificate", "obligation as to the manner of discharging the debt", "obligation to repay the debt", "ratification", "redemption notice", "remedies which were cumulative", "separate obligations", "waiver".
NEGLIGENCE - Proof of loss and damage - Negligence by solicitor - Financial agreement under Family Law Act 1975 (Cth) Pt VIIIA entered before marriage - Financial agreement provided how property and financial resources dealt with on breakdown of marriage - Where financial agreement prepared by solicitor void for uncertainty - Where financial agreement prepared by solicitor set aside on hardship grounds - Where solicitor breached duty of care to take reasonable care in giving advice - Whether client failed to adduce evidence establishing loss - Whether negligence claim statute barred - When loss first suffered.
NEGLIGENCE - Proof of loss and damage - Negligence by solicitor - Financial agreement under Family Law Act 1975 (Cth) Pt VIIIA entered before marriage - Financial agreement provided how property and financial resources dealt with on breakdown of marriage - Where financial agreement prepared by solicitor void for uncertainty - Where financial agreement prepared by solicitor set aside on hardship grounds - Where solicitor breached duty of care to take reasonable care in giving advice - Whether client failed to adduce evidence establishing loss - Whether negligence claim statute barred - When loss first suffered.
WORDS AND PHRASES - "binding financial agreement", "cause of action accrued", "character of the alleged loss", "compensable loss", "compensatory damages", "consequential losses", "damages", "date of separation", "did not get what he should have got", "failed to prove any further loss or damage", "financial agreement before marriage", "financial agreement prepared with reasonable care and skill", "in the event of the breakdown of the marriage", "lack of any evidence", "loss of chance", "loss or damage in tort", "lost opportunity", "no force or effect until a separation declaration is made", "properly characterising the claimed loss", "provision for the birth of a child or children", "provision of advice", "recovery of damages for the legal costs", "set aside for uncertainty", "spouse parties", "statute barred", "substantial prospect of a beneficial outcome", "terms or scope of a financial agreement drafted with reasonable care and skill", "unless and until the marriage breaks down", "void, voidable or unenforceable", "wasted legal fees", "would not have entered into the marriage".
Limitation of Actions Act 1936 (SA), s 35(c).
Family Law Act 1975 (Cth), ss 71A, 79, 90B, 90C, 90D, 90DA, 90DB, 90G, 90K, 90KA.
RESTITUTION - Unjust enrichment - Failure of basis or condition - Interest - Where client engaged law firm under retainer agreements - Where retainer agreements imposed binding obligations on client to pay legal costs - Where law firm had no right to retain payment under Legal Practice Act 2003 (WA) if, and to extent that, payment was found on taxation to exceed amount authorised by certificate from taxing officer - Where, prior to taxation, client and law firm reached settlement - Where settlement deed required repayment of sum as "amount that would have been ordered to be refunded" if there had been taxation - Where settlement deed left open option of litigating further claim for interest on settlement sum - Whether interest available on settlement sum - Whether there had been failure of basis or condition for client's payments of invoices issued under retainer agreements - Whether Legal Practice Act formed comprehensive regime for recovery of principal sum paid for legal costs over amount certified by taxing officer, and interest on that sum, to the exclusion of any common law restitutionary claim.
RESTITUTION - Unjust enrichment - Failure of basis or condition - Interest - Where client engaged law firm under retainer agreements - Where retainer agreements imposed binding obligations on client to pay legal costs - Where law firm had no right to retain payment under Legal Practice Act 2003 (WA) if, and to extent that, payment was found on taxation to exceed amount authorised by certificate from taxing officer - Where, prior to taxation, client and law firm reached settlement - Where settlement deed required repayment of sum as "amount that would have been ordered to be refunded" if there had been taxation - Where settlement deed left open option of litigating further claim for interest on settlement sum - Whether interest available on settlement sum - Whether there had been failure of basis or condition for client's payments of invoices issued under retainer agreements - Whether Legal Practice Act formed comprehensive regime for recovery of principal sum paid for legal costs over amount certified by taxing officer, and interest on that sum, to the exclusion of any common law restitutionary claim.
WORDS AND PHRASES - "basis or condition", "bill of costs", "compound interest", "condition subsequent", "conditional obligation", "deemed taxation", "failure of basis or condition", "fair and reasonable", "interest", "legal costs", "no juristic reason", "no justification", "principal", "restitution", "retainer agreement", "simple interest", "statutory interest", "taxation certificate", "unjust enrichment".
Legal Practice Act 2003 (WA), ss 221, 222, 229(a), 231, 232, 235, 240, 242, 243.
Legal Profession Act 2008 (WA), ss 2(b), 598, 616(1).
Legal Profession Uniform Law Application Act 2022 (WA), s 260.
Supreme Court Act 1935 (WA), s 32.
CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Causation - Where retainers for accountant to provide advisory services in relation to purchase of a business - Where accountant found to have breached retainers - Where breach of one of the retainers (the 'Porter retainer') limited to misuse of confidential information after termination of retainer - Scope of breach - Breach constituted by misuse of form and contents of earlier conditional offer - Where judge unable to say that earlier offer provided to accountant prior to making successful unconditional 'cash' offer - Where further information available from other sources included more recent conditional offer and highly attractive valuation - Causation not established - Leave to appeal granted - Appeal allowed - Alexander v Cambridge Credit Co Ltd (1987) 9 NSWLR 310; Amaca Pty Ltd v Booth (2011) 246 CLR 36; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; Lewis v Australian Capital Territory (2020) 271 CLR 208, discussed.
CONTRACT - Construction - Whether implied obligation of good faith or obligation not to improperly use position as advisor survived termination of Porter retainer - Not reasonable or necessary for terms to survive termination - Notice of contention rejected.
PRACTICE AND PROCEDURE - Incompetency - Application for proposed ground of appeal to be struck out as incompetent - Where proposed ground seeks to set aside 'findings' in judge's reasons as to accountant acting dishonestly and fraudulently in breach of procedural fairness - Whether findings constituted 'determination[s]' within the meaning of s 17(2) of the Supreme Court Act 1986 - Concept of 'determination' in s 17(2) does not extend to findings made - Proposed ground of appeal incompetent - Accountant had adequate notice in any event - O'Bryan v Lindholm (2024) 74 VR 496, applied; Barnes v Addy (1874) LR 9 Ch App 244; Nadinic v Drinkwater (2017) 94 NSWLR 518; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296, discussed.
EVIDENCE - Fresh evidence - Application to adduce further evidence pursuant to r 64.13(1) of the Supreme Court (General Civil Procedure) Rules 2025 - Where judge found that account of profits capable of doing full justice and refused constructive trust remedy - Whether parties shared 'common assumptions' that corporate trustee defendant would not be insolvent - Whether 'common assumptions' falsified by subsequent liquidation - No evidence that parties shared common assumptions - Assumptions misconceived and not 'falsified' in any event - Application refused in exercise of discretion - Foody v Horewood (2007) 62 ACSR 576; Apostolidis v Kalenik (2011) 35 VR 563, considered.
EQUITY - Fiduciary duty - Whether fiduciary relationship in addition to contractual relationship - Lack of necessary undertaking and vulnerability - No fiduciary duty owed - Applications for leave to cross-appeal refused - Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296; ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, discussed.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
PRACTICE AND PROCEDURE - Applications for leave to intervene in proceeding - Applicants are barristers whose conduct of the proceeding below is impugned - Procedural fairness requires opportunity to be heard - No objection to intervention - Applications for leave to intervene granted.
Supreme Court (General Civil Procedure) Rules 2025, r 64.10.
PRACTICE AND PROCEDURE - Application to restrain barristers from acting for first to third respondents in application for leave to appeal and any appeal - Barristers stated to Court that they regard themselves as unable to act until application for leave to appeal and any appeal is decided - Order restraining barristers not necessary.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Application for Judge of Appeal to direct Registrar to accept documents for filing - Proposed documents seeking leave to appeal against orders of judge at directions hearing - No finding or determination made by judge - Direction to accept documents not made.
PRACTICE AND PROCEDURE - Filing - Power to direct Registrar to accept documents for filing - Registrar refused to accept documents for filing - Application for Judge of Appeal to direct Registrar to accept documents for filing - Proposed documents seeking leave to appeal against orders of judge at directions hearing - No finding or determination made by judge - Direction to accept documents not made.
Supreme Court Act 1986 s 17; Supreme Court (General Civil Procedure) Rules 2025 rr 28.03, 64.43.
Re Thorpe [2024] VSCA 172, applied; Staats v United States of America (1992) 66 ALJR 793, considered.
PRACTICE AND PROCEDURE - Appeal - Companies - Requirement to be represented by solicitor - Whether judge erred in exercising discretion - Whether judge erred in applying Silberman - Whether judge erred in costs determination - County Court judge bound by County Court's Act and Rules - No error - No evidence of applicant's inability to afford to engage solicitor - Proposed grounds totally without merit - Leave to appeal refused.
PRACTICE AND PROCEDURE - Appeal - Companies - Requirement to be represented by solicitor - Whether judge erred in exercising discretion - Whether judge erred in applying Silberman - Whether judge erred in costs determination - County Court judge bound by County Court's Act and Rules - No error - No evidence of applicant's inability to afford to engage solicitor - Proposed grounds totally without merit - Leave to appeal refused.
Civil Procedure Act 2010, s 47; Commonwealth Constitution, ss 75-77; County Court Act 1958, s 78A; County Court Civil Procedure Rules 2018, rr 1.17(1), 2.04; Judiciary Act 1903 (Cth) s 39(2); Supreme Court Act 1986, ss 14C, 14D; Victorian Civil and Administrative Tribunal Act 1998, ss 62(3), 77(3).
Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 73 VR 403; Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR 595, discussed; Kajula Pty Ltd v Downer EDI Limited (2024) 76 VR 75; Milfoil Pty Ltd v Commonwealth Bank of Australia Ltd [2020] VSCA 223; Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147; Oshlack v Richmond River Council (1998) 193 CLR, considered.
COSTS - Costs of manifestly hopeless application for leave to appeal - No reasons costs should not follow the event - Respondents entitled to indemnity costs.
COSTS - Costs of manifestly hopeless application for leave to appeal - No reasons costs should not follow the event - Respondents entitled to indemnity costs.
CRIMINAL LAW - Appeal - Sentence - Dishonestly obtain financial advantage by deception from Commonwealth entity - Knowingly use false document to dishonestly influence the exercise of a duty or function of Commonwealth public official - Applicant initially sentenced to 3 years and 6 months' imprisonment to be released after 20 months pursuant to recognizance release order - Judge substituted recognizance release order with non-parole period of 20 months - Whether judge erred in substituting recognizance release order with non-parole period - Whether s 19AH(2) of the Crimes Act 1914 (Cth) operates to specifically exclude failure to make non-parole period in circumstance where judge made recognizance release order but had no power to do so - Section 19AH(2) applicable therefore section 19AH(1) not available to judge - Judge erred in substituting recognizance release order with non-parole period - Appeal allowed - Applicant resentenced to 3 years and 6 months' imprisonment with non-parole period of 17 months.
CRIMINAL LAW - Appeal - Sentence - Dishonestly obtain financial advantage by deception from Commonwealth entity - Knowingly use false document to dishonestly influence the exercise of a duty or function of Commonwealth public official - Applicant initially sentenced to 3 years and 6 months' imprisonment to be released after 20 months pursuant to recognizance release order - Judge substituted recognizance release order with non-parole period of 20 months - Whether judge erred in substituting recognizance release order with non-parole period - Whether s 19AH(2) of the Crimes Act 1914 (Cth) operates to specifically exclude failure to make non-parole period in circumstance where judge made recognizance release order but had no power to do so - Section 19AH(2) applicable therefore section 19AH(1) not available to judge - Judge erred in substituting recognizance release order with non-parole period - Appeal allowed - Applicant resentenced to 3 years and 6 months' imprisonment with non-parole period of 17 months.
Crimes Act 1914 (Cth), ss 19AB, 19AC, 19AH, 19AHA; Sentencing Act 1991, s 104B.
ABC v The King [2023] VSCA 280; Putland v The Queen (2004) 218 CLR 174; Hili v The Queen (2010) 242 CLR 520, applied.
DPP (Cth) v Wallace (2011) 213 A Crim R 420; R v TW (No 2) [2014] ACTCA 37, considered.
CRIMINAL LAW - Interlocutory appeal - Application for Leave - Trafficking a drug of dependence in a quantity not less than a commercial quantity - Possession of a drug of dependence - Negligently dealing with proceeds of crime - Application to exclude evidence pursuant to s 137 Evidence Act 2008 - Whether trial judge erred in conclusions concerning probative value of the evidence - Whether trial judge erred in conclusions concerning prejudice to the accused - Consideration of circumstantial evidence as a whole - Evidence supporting inference that the applicant had drugs in his possession for the purpose of sale - Evidence that cash constituted proceeds of crime of which the applicant dealt - Measures available at trial to address potential prejudice - Leave to appeal refused.
CRIMINAL LAW - Interlocutory appeal - Application for Leave - Trafficking a drug of dependence in a quantity not less than a commercial quantity - Possession of a drug of dependence - Negligently dealing with proceeds of crime - Application to exclude evidence pursuant to s 137 Evidence Act 2008 - Whether trial judge erred in conclusions concerning probative value of the evidence - Whether trial judge erred in conclusions concerning prejudice to the accused - Consideration of circumstantial evidence as a whole - Evidence supporting inference that the applicant had drugs in his possession for the purpose of sale - Evidence that cash constituted proceeds of crime of which the applicant dealt - Measures available at trial to address potential prejudice - Leave to appeal refused.
Drugs Poisons and Controlled Substances Act 1981; Criminal Procedure Act 2009; Crimes Act 1958; Evidence Act 2008.
Momcilovic v The Queen (2011) 245 CLR 1; He Kaw Teh v The Queen (1985) 157 CLR 523 applied; Williams v The Queen (1978) 140 CLR 591, referred to.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Interlocutory appeal - Review of refusal to certify - Historical sexual offences - Three complainant nieces - Delay of 40 to 45 years since alleged offending - Witnesses and documentary evidence claimed to be unavailable - Trial judge refused permanent stay - Trial judge refused to certify for interlocutory appeal - Application to review refusal to certify refused.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Prosecution of aged care home operator in relation to Covid-19 outbreak - Alleged offence under s 26 of Occupational Health and Safety Act 2004 - Where judge ruled evidence of number of deaths at aged care home inadmissible - Where judge refused to certify decision under s 295 of Criminal Procedure Act 2009 - Judge erred in refusing to certify - Exclusion of evidence would substantially weaken prosecution case for purposes of s 295(3)(a) - Court satisfied that in 'interests of justice' to grant leave to appeal for purposes of s 297 - Application for leave to appeal against interlocutory decision granted.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths irrelevant because existence of risk admitted - Evidence of number of deaths relevant to assessment of 'degree of harm that would result if hazard or risk eventuated' under s 20(2)(b) of Occupational Health and Safety Act 2004 - 'Degree of harm' encompasses both nature and extent of consequences of risk eventuating - Admission goes only to nature of consequences - Impugned evidence goes to extent of consequences - Appeal allowed.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence irrelevant because matter of 'common knowledge' within meaning of s 144 of Evidence Act 2008 - Section 144 removes requirement for proof of certain matters but does not go to relevance - Evidence in question not a matter of 'common knowledge' or 'knowledge that is not reasonably open to question'.
CRIMINAL LAW - Appeal - Interlocutory appeal - Whether evidence of number of deaths inadmissible pursuant to s 137 of Evidence Act 2008 - Probative value of evidence high because goes to extent of consequences of risk eventuating - Risk of unfair prejudice to defendant low because evidence is bare number - Risk of unfair prejudice can be ameliorated by directions to jury - Evidence admissible - Appeal allowed.
Occupational Health and Safety Act 2004, ss 20, 26; Criminal Procedure Act 2009, ss 295, 296, 297; Evidence Act 2008, ss 55, 137, 144.
R v Vibro- Pile (Aust) Pty Ltd (2016) 49 VR 676; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; Kane (a pseudonym) v The King (2023) 383 FLR 387; R v Paulino (2017) 54 VR 109, considered.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - First respondent subject to two-year community correction order at time of offending - Low intellectual capacity and autism spectrum disorder - Whether judge erred in finding first respondent's impaired mental functioning satisfied requirements of s 5(2H)(c)(ii) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Burden of imprisonment materially greater by reason of first respondent's impaired mental capacity - First respondent at greater risk of ongoing institutionalisation - Statutory discretion existed to impose combination sentence - No error.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - First respondent subject to two-year community correction order at time of offending - Low intellectual capacity and autism spectrum disorder - Whether judge erred in finding first respondent's impaired mental functioning satisfied requirements of s 5(2H)(c)(ii) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Burden of imprisonment materially greater by reason of first respondent's impaired mental capacity - First respondent at greater risk of ongoing institutionalisation - Statutory discretion existed to impose combination sentence - No error.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Whether sentence manifestly inadequate - First respondent assessed as unsuitable for community correction order - Expert evidence given in respect of earlier offending that first respondent at high risk of future violence - Whether judge failed to give due weight to need for denunciation and general deterrence - Personal circumstances upon which judge placed significant weight do not justify leniency of sentences - Sentence manifestly inadequate - Appeal allowed - First respondent's moral culpability reduced to some degree on account of relative youth, intellectual disability, autism spectrum disorder and history of childhood deprivation - First respondent substantially served custodial element of sentence - First respondent resentenced to total effective sentence of 5 years and 6 months' imprisonment - Exercise of residual discretion cannot be justified.
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Home invasion - Armed robbery - Theft - Judge found offending was not so serious as to entirely displace principles that apply to sentencing of young offenders - Whether judge erred in finding combination of mitigating factors including youth, intellectual disability and childhood deprivation constituted substantial and compelling reasons that are exceptional and rare pursuant to s 5(2H)(e) of the Sentencing Act 1991 - Whether judge ought to have imposed custodial sentence otherwise than in combination with community correction order for category 2 offending - Offending is of a kind commonly perpetrated by young offenders including persons of low intelligence who have suffered some childhood deprivation - Not open to judge to regard mitigating factors as giving rise to rare and exceptional circumstances - Sentence imposed beyond power - Appeal allowed.
Azzopardi v The Queen (2011) 35 VR 43; Veen v The Queen (No 2) (1998) 164 CLR 465; DPP v Lombardo (2022) 302 A Crim R 329, applied.
Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120, considered.
Sentencing Act 1991, ss 5(2H)(c)(ii), 5(2H)(e).
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.
CONTRACT - Plaintiff claiming breach of asset purchase agreement - Whether defendant liable under agreement - Whether plaintiff had warranty claim - Whether plant and equipment in good working order and fit for purpose - Whether plaintiff gave notice of warranty claims - Whether defendant disclosed faults - Whether defendant liable under Australian Consumer Law - Whether directors of defendant companies liable.