Friday, 27 September 2019

Weekly Banking Law ReviewSelected from our Daily

Bulletins covering Banking

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CIVIL (Insurance, Banking, Construction & Government) Executive Summary (1 minute read)

Miller, R (on the application of) v The Prime Minister (UKSC) - prorogation - decision ofGovernment ’to prorogue Parliament’ unlawful - Advocate General’s appeal in ’Cherryproceedings’ dismissed - Mrs Miller’s appeal in ’Miller proceedings’ allowed

Ultra Tune Australia Pty Ltd v Australian Competition and ConsumerCommission (FCAFC) - corporations - consumer law - contravention of ’disclosure obligation’in cl 15(1) Franchising Code (Schedule 1 to the Competition and Consumer (Industry Codes –Franchising) Regulation 2014 (Cth) - appeal dismissed - appeal against penalty allowed

G Capital Corporation Pty Ltd v Roads and Maritime Services (NSWCA) - compulsoryacquisition of land - appeal against determination of separate questions - leave to appealagainst one of two questions allowed - appeal dismissed

Linke v Linke (VSCA) - wills and estates - trusts and trustees - power of sale - transfer ofassets of estate by executors to respondent and wife - asset not held on trust for applicants -appeal dismissed

Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] (WASCA) - contract - guarantee andindemnity - dismissal of claim against second respondent concerning debt owed by firstrespondent - appeal dismissed

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Summaries With Link (Five Minute Read)

Miller, R (on the application of) v The Prime Minister [2019] UKSC 41 United Kingdom Supreme CourtLady Hale, President; Lord Reed, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath,Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin & Lord SalesProrogation - appeals concerning lawfulness of Government’s decision ’to prorogueParliament’ - ’four issues’ - whether question of lawfulness of Prime Minister’s advice toQueen was ’justiciable in a court of law’ - standard by which the advice’s lawfulness was ’tobe judged’ - whether advice lawful - if advice not lawful, remedy which Court should grant -whether action of Prime Minister effectively frustrated or prevented ’constitutional role ofParliament in holding the Government to account’ - whether ’reasonable justification’ for PrimeMinister’s action - held: decision of Government ’to prorogue Parliament’ was unlawful -Advocate General’s appeal against decision of Scottish Court of Session in ’Cherryproceedings’ dismissed - Mrs Miller’s appeal in ’Miller proceedings’ allowed - Parliament hadnot been prorogued - declarations to be granted to that effect.Miller[From Benchmark Thursday, 26 September 2019]

Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019]FCAFC 164Full Court of the Federal Court of AustraliaAllsop CJ; Jagot & Abraham JJCorporations - consumer law - primary judge found appellant contravened ’disclosureobligation’ which appellant owed franchisees in cl 15(1) Franchising Code (Schedule 1 to theCompetition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth) (Code) -primary judge imposed penalties for contravention and other ’admitted contraventions’ of’disclosure obligations’ in Code - appellant appealed - whether erroneous failure to applyprinciple in Beckwith v The Queen [1976] HCA 55 - whether ’financial statements’ were’sufficiently detailed’ - whether appellant failed to give ’sufficient detail’ concerning ’item ofexpenditure’ such that it had given ’meaningful information’ about it in accordance withrequirement in cl 15(1)(b)(ii) Code - held: no error in finding contravention by appellant of cl15(1) Code - appeal against penalty upheld.Ultra Tune[From Benchmark Wednesday, 25 September 2019]

G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234Court of Appeal of New South WalesMeagher, Gleeson & McCallum JJACompulsory acquisition of land - separate questions - property of first applicant and property ofsecond applicant compulsorily acquired by respondent - proceedings concerned determinationof compensation to which applicants entitled - primary judge answered ’two separate

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questions’ in the negative - questions were: ’whether there was any “actual use of land”’ byapplicants which would disentitle them to compensation under s59(1)(f) Land Acquisition (JustTerms Compensation) Act 1991 (NSW) (Just Terms Act) (first question) and whether, on basisof contracts for properties’ sale, compensation was to be confined to calculation with regard’only to matters arising under’ ss55(d) & 59(1)(f) Just Terms Act (second question) -applicants, under s57(1) Land and Environment Court Act 1979 (NSW), sought to appeal - held:leave to appeal granted in respect of first question - appeal dismissed.View Decision[From Benchmark Wednesday, 25 September 2019]

Linke v Linke [2019] VSCA 210Court of Appeal of VictoriaMcLeish, Niall & Emerton JJAWills and estates - trusts and trustees - executors transferred assets of estate to respondentand wife - applicants claimed assets 'held on trust' for applicants due to 'absence of power tosell' assets of estate or on basis respondent and wife held farm on 'constructive trust' - primaryfound deceased's will conferred power of sale on trustees, and that applicants did not establisheither that respondent and wife had received assets of estate for 'less than full value' or thatthere was a constructive trust in their favour - primary judge also found claims compromised by'enforceable release' which parties entered - whether will contained power of sale - whetherassets' transfer gave rise to trust - whether transaction's circumstances unconscionable suchthat constructive trust needed to be imposed - whether release unenforceable - held: appealdismissed.Linke[From Benchmark Wednesday, 25 September 2019]

Westgyp Pty Ltd v Northline Ceilings Pty Ltd [No 2] [2019] WASCA 145Court of Appeal of Western AustraliaQuinlan CJ; Murphy & Mitchell JJAContract - appellant claimed against second respondent concerning debt which first respondentin liquidation owed ’on credit’ - appellant contended second respondent ’personally liable’ fordebt, including as guarantor under ’guarantee and indemnity’ which second respondent gaveas part of ’credit application’ made on first respondent’s behalf (2009 credit application) -primary judge dismissed appellant’s claim - whether parties contracted on ’executed terms’ of’2012 credit application’ - construction of guarantee and indemnity - whether guarantee andindemnity under 2009 credit application covered goods supplied under 2012 credit application -whether second respondent executed 2012 credit application in ’personal capacity’ - held:appeal dismissed.Westgyp[From Benchmark Tuesday, 24 September 2019]

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CRIMINAL Executive Summary

Summaries With Link

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The Brook By: Lord Alfred Tennyson I come from haunts of coot and hern,I make a sudden sallyAnd sparkle out among the fern,To bicker down a valley. By thirty hills I hurry down,Or slip between the ridges,By twenty thorpes, a little town,And half a hundred bridges. Till last by Philip's farm I flowTo join the brimming river,For men may come and men may go,But I go on for ever. I chatter over stony ways,In little sharps and trebles,I bubble into eddying bays,I babble on the pebbles. With many a curve my banks I fretBy many a field and fallow,And many a fairy foreland setWith willow-weed and mallow. I chatter, chatter, as I flowTo join the brimming river,For men may come and men may go,But I go on for ever. I wind about, and in and out,With here a blossom sailing,And here and there a lusty trout,And here and there a grayling, And here and there a foamy flakeUpon me, as I travelWith many a silvery waterbreak

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Above the golden gravel, And draw them all along, and flowTo join the brimming riverFor men may come and men may go,But I go on for ever. I steal by lawns and grassy plots,I slide by hazel covers;I move the sweet forget-me-notsThat grow for happy lovers. I slip, I slide, I gloom, I glance,Among my skimming swallows;I make the netted sunbeam danceAgainst my sandy shallows. I murmur under moon and starsIn brambly wildernesses;I linger by my shingly bars;I loiter round my cresses; And out again I curve and flowTo join the brimming river,For men may come and men may go,But I go on for ever. https://en.wikipedia.org/wiki/Alfred,_Lord_Tennyson

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