Monthly Archives: November 2018

JADE Cases of Interest 02

Contract law

Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282

Contracts – formation of contract – requirements for effective novation

Supreme Court of New South Wales. Court of Appeal. Barrett AJA, Macfarlan and Gleeson JJA. 23 November 2018. 45 paragraphs.

Whether novation of contract established (as distinct from a right of nomination). Court reiterated that ‘the crux of novation is intention’ – the parties’ conduct, in light of the total circumstances of the contract, must reveal a ‘tripartite agreement’ evidencing an intention to replace the original rights and obligations under the contract with new ones.

Meehan v Jones[1982] HCA 52; 149 CLR 571 at 594; Olsson v Dyson[1969] HCA 3; 120 CLR 365 at [9], cited.

Vickery v Woods[1952] HCA 7; 85 CLR 336 at 345; ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue[2012] HCA 6; 245 CLR 338 at [12], applied.

Criminal law

R v Ross [2018] SASCFC 120

Criminal sentencing – Crown appeal – where manifestly inadequate 

Supreme Court of South Australia. Court of Criminal Appeal. Kourakis CJ, Blue and Lovell JJ. 21 November 2018. 77 paragraphs.

Crown appeals against criminal sentences will be allowed, but such circumstances are ‘rare and exceptional’. Notwithstanding that this threshold is vigorously applied, leave granted where an appellate court forms the view that either some specific error has occurred in the primary judge’s reasoning, or where the sentence otherwise appears manifestly excessive or unjust. 

Everett v The Queen[1994] HCA 49; 181 CLR 295 at 299; AB v R[1999] HCA 49; 198 CLR 111 at 159-160 [129]-[130], applied.


Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316

Equity – breach of trust – release – equitable remedies – clean hands

Supreme Court of Victoria. Court of Appeal. Kyrou, McLeish and Hargrave JJA. 27 November 2018. 137 paragraphs.

When can a trustee rely on a beneficiary’s release of a breach of trust? Trustee bears the onus of showing the release was given ‘deliberately and advisedly’; whether beneficiary possessed requisite knowledge depends on the circumstances of the case.

Farrant v Blanchford(1863) 1 De G J & S 107 at 119–20; 46 ER 42 at 46–7; Re Pauling’s Settlement Trust [1961] 3 All ER 713 at 730, applied.

Secondly, trustee will be precluded from claiming equitable relief (such as estoppel) where it bears ‘unclean hands’. This requires the unconscionable conduct to have ‘immediate and necessary relation to the equity sued for’, as well as ‘depravity in a legal as well as in a moral sense’.

Dering v Earl of Winchelsea(1787) 1 Cox 318 at 319-20; 29 ER 1184 at 1185, applied.

Intellectual property

Australian Meat Group Pty Ltd v JBS Australia Pty Limited [2018] FCAFC 207

Intellectual property – trade marks – deceptively similar – brand reputation

Federal Court of Australia. Full Court. Allsop CJ, Besanko and Yates JJ. 27 November 2018. 91 paragraphs.

What is the correct approach in determining whether particular trade marks are deceptively similar (for the purposes of s 120(1) Trade Marks Act 1995 (Cth))? Determination will be erroneous when brand reputation is taken into account. All that is required is the direct comparison between the mark of the owner with that of the alleged infringer; a wider inquiry (such as that employed in an action for passing off) is not appropriate.

Registrar of Trade Marks v Woolworths[1999] FCA 1020; 93 FCR 365 at [61]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd[2018] FCAFC 93; 358 ALR 683 at 686–689 [4]–[10], 696–697 [52]–[53] and 724 [169], cited.

CA Henschke & Co v Rosemount Estates Pty Ltd[2000] FCA 1539; 52 IPR 42 at [44]-[45], applied.

JADE Cases of Interest 01

JADE Australasian cases of Interest for Legal Professionals

Welcome to our first instalment of Australasian cases of interest for legal professionals. These eclectic decisions have been selected by our editorial team because we think that they contain interesting or important applications of principle. They are available on JADE.

The summaries have been written by the most recent member of our JADE Editorial Team, Ms Katya Pesce BA LLB (Hons). We’d love to have your feedback about this selection. If you think that we should include a particular decision, please let us know. Simply send us an email to or call us on +61 2 8815 9081.

This publication is one of many benefits offered to JADE Professional Subscribers. To become a JADE Professional Subscriber, please visit:

Administrative law

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276

Administrative functions – obligation to act in good faith

Supreme Court of New South Wales. Court of Appeal. Basten, Leeming and White JJA. 20 November 2018. 56 paragraphs.

Content of decision-makers’ obligation to act in good faith. Failure to form a view on all matters does not automatically establish lack of good faith. Bad faith not comprehensively defined, but here required ‘wilful blindness’ or ‘conscious maladministration’.

Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; 243 CLR 164 at [30]; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN[2002] FCAFC 431 at [8], applied.

Constitutional law

Banerjee v Commissioner of Police [2018] NSWCA 283

Constitutional law – inconsistency of Commonwealth and state laws – validity of state law

Supreme Court of New South Wales. Court of Appeal. Bathurst CJ, Beazley P, Basten JA. 22 November 2018. 47 paragraphs.

Circumstances in which inconsistency between state and Commonwealth laws is established, resulting in invalidity of state legislation. For the purposes of s 109 of the Constitution, inconsistency arises where state legislation qualifies, alters or impairs the operation of Commonwealth immunity from a class of state laws.

Ansett Transport Industries (Operations) Pty Ltd v Wardley[1980] HCA 8; 142 CLR 237 at 259-260; Bell Group NV (In liq) v State of Western Australia[2016] HCA 21; 260 CLR 500 at [50]-[51], applied.

Contract law

Sentinel Robina Office Pty Ltd v Clarence Property Corporation Ltd [2018] QCA 314

Contractual principles – interpretation of contracts – contractual obligations

Supreme Court of Queensland. Court of Appeal. Sofronoff P, Philippides JA and Davis J. 13 November 2018. 27 paragraphs.

Construction of contracts and deeds, and the obligation to act in good faith. The usual content of such an obligation entails a degree of co-operation, but does not require individual interests to be subordinated to those of the other. The duty solely concerns the parties’ contractual objectives.

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service[2010] NSWCA 268; 5 BPR 28,563 at [12]-[16], applied.

Criminal law

Tony Strickland (a pseudonym) v DPP (Cth) [2018] HCA 53

Criminal practice – abuse of process – illegally obtained evidence – compulsory examinations

High Court of Australia. Kiefel CJ, Bell, Nettle, Gageler, Keane, Gordon and Edelman JJ. 8 November 2018. 297 paragraphs.

Whether compulsory examinations amounted to a violation of common law right to silence, constituting an abuse of process. Where examinations are conducted for some extraneous purpose, they may be characterised as unlawful. As such, they alter the ‘accusatorial judicial process’.

X7 (No I)[2013] HCA 29; 248 CLR 92 at 136-137 [102]-[105], 142-143 [124]; Lee v The Queen[2014] HCA 20; 253 CLR 455 at 466-467 [31]-[34], applied.

Chaarani v DPP (Cth); Mohamed v DPP (Cth) [2018] VSCA 299

Criminal trial – open justice – prejudicial publicity – suppression orders

Supreme Court of Victoria. Court of Appeal. Maxwell P, Beach and Hargrave JJA. 14 November 2018. 51 paragraphs.

Whether suppression of jury verdict necessary to prevent prejudice to future trial. Progress of proceedings widely reported in the media. Guiding principle that the administration of justice must take place in an open court. Suppression orders should be avoided where other measures will sufficiently ameliorate risk of prejudice.

Dupas v The Queen[2010] HCA 20; 241 CLR 237 at 251 [38], applied.

Statutory interpretation

Comptroller General of Customs v Zappia [2018] HCA 54

Statutory construction – context and purpose

High Court of Australia. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ. 14 November 2018. 46 paragraphs.

High Court reiterated that the correct approach to statutory construction remains consideration of a text’s context and purpose. Where terms do not have fixed legal meaning, their application in a given context may be one of degree.

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; 143 CLR 499 at 519-520,cited.
Queensland v Congoo[2015] HCA 17; 256 CLR 239 at 255 [11], 301-302 [161], applied.

Katya Pesce
on behalf of the JADE Editorial Team
23 November 2018.