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.

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