New South Wales Court of Appeal - Decisions of Interest Search
Agency: appellant Australian wine maker employed respondent English company as agent and distributor in the UK; respondent sold wine in the UK both in its own right and on the appellant’s behalf under “Agency and Distribution Agreement”; respondent placed under administration and subsequently into liquidation; at the time administration commenced, outstanding invoices in the UK totalled more than $800,000 AUD; appellant purported to terminate agreement and any authority of the respondent to collect on the invoices; liquidators appointed to respondent alleged invoices formed part of a buyer-seller relationship and not an agent-principal relationship, such that appellant left to prove for simple debt; first instance judge characterised relationship as one of agency and held respondent’s authority in relation to the invoices came to an end upon termination of the agreement; Court of Appeal held that the respondent’s authority in relation to the invoices was irrevocable and survived termination of the agreement; whether agreement of irrevocability sufficient to make authority irrevocable; requirement that agent have a personal interest in the exercise of the authority sufficient to make it irrevocable; respondent’s authority in relation to invoices terminated by termination of agreement.
Angove’s Pty Ltd v Bailey  UKSC 47
Equity and trusts:
restitution; unjust enrichment; doctrine of illegality; doctrine of reliance; whether a party is precluded from recovering money paid under a contract tainted by illegality under the law of unjust enrichment.
Mr Patel transferred sums totalling £620,000 to Mr Mirza in an agreement amounting to insider dealing, pursuant to s 52 Criminal Justice Act 1993 (UK), which did not eventuate; there was a resulting failure of consideration; Mr Patel instituted proceedings to recover the money paid.
The Court considered the rule-based approach to the doctrine of reliance as established in Tinsley v Milligan  1 AC 340 and determined that it should no longer be followed; the Court proposed a flexible approach considering a “range of factors” when determining whether to grant or refuse to grant relief based on the doctrine of illegality; the essential rationale of the doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system; factors included in this assessment are i) the underlying purpose of the prohibition which has been transgressed, ii) any other relevant public purpose enhanced by a denial of the claim, and iii) proportionality of response.
Australian authorities considered: –
Nelson v Nelson  HCA 25; 184 CLR 538
Fitzgerald v FJ Leonhardt Pty Ltd  HCA 17; 189 CLR 215
Patel v Mirza  UKSC 42
Torts: tort of malicious prosecution; respondents were executors of a deceased estate; appellant had been a director of a company controlled by the deceased; company in question had brought proceedings against the appellant for alleged breach of contractual and fiduciary duties; proceedings against appellant discontinued and appellant awarded costs; appellant brought proceedings against the deceased alleging malicious prosecution; allegation that proceedings were part of a campaign to do him harm; whether the tort of malicious prosecution includes the prosecution of civil proceedings; claim held to be sustainable in English law; claim permitted to go to trial.
Willers v Joyce  UKSC 43
Contract: recovery of compensation for work done; appellants experienced in investment fund management; respondents high-net worth individuals; appellants and respondents embarked upon a business project in which respondents would provide funds to be managed by the appellants for the financial benefit of all involved; relationship deteriorated in the context of the Global Financial Crisis; respondents commenced proceedings seeking to have investments transferred to them; appellants counterclaimed for management fees and expenses; management fees agreed in relation to some investment funds but not others; first instance judge found in favour of respondents and dismissed appellants’ counterclaim; whether appellants entitled to recover compensation for work done where no express contractual management fee; contractual and restitutionary basis for recovery; recovery on the basis of implied contract or implied term in express contract; recovery under the doctrine of quantum meruit; held appellants entitled to compensation for work done for an anticipated management contract that did not ultimately arise.
Eng Chiet Shoong v Cheong Soh Chin  SGCA 45
Torts: non-delegable duties of care; appellant management corporation brought proceedings in negligence against developer of condominiums, main contractor, architect and architect’s sub-contractors; claim that construction works were not carried out in a good and workmanlike manner and/or in accordance with approved plans and standards; whether main contractor and architect owed the appellant non-delegable duties of care to build and design the condominiums with reasonable care; nature of duties that cannot be discharged by delegation or by entrusting performance to another; recognised circumstances in which non-delegable duties arise; excessively onerous to impose legal liability on the respondents for defective building works; asserted non-delegable duty of care did not arise.
Management Corporation Strata Title Plan No 3322 v Tiong Aik Construction Pte Ltd  SGCA 40
Workers compensation: occupational exposure and causation; seven technicians at a single hospital laboratory diagnosed with breast cancer; no-fault workers’ compensation regime in British Columbia imposed requirement of causation; relevant occupational disease must have been “due to” the nature of the worker’s employment; payment of benefits also conditional upon the relevant employment being of “causative significance” in the development of the illness; workers compensation tribunal found the workers’ breast cancer was caused by the nature of their employment; expert evidence indicated insufficient scientific basis to conclusively link the workers’ breast cancer with their employment in the laboratory; evidence of past use of carcinogens in the laboratory and that cluster of breast cancer cases statistically significant; whether finding of causation open on facts; opinion evidence not determinative of causation as a question of fact; open to trier of fact to consider whether other evidence supports an inference of causation; workers’ appeal allowed.
British Columbia v Fraser Health Authority  SCC 25
Human rights: appellants were migrant domestic workers who had been mistreated by employers in the UK; appellants in the UK on domestic workers’ visas, the operation of which rendered them dependent on their employers in order to live and work in the country; Employment Tribunal upheld claims for unpaid wages, unlawful deductions from wages, lack of rest periods, failure to provide written terms of employment and discrimination on the basis of appellants’ vulnerable migrant status; Court of Appeal allowed appeal in relation to discrimination claim; whether discrimination on grounds of immigration status amounts to discrimination on grounds of nationality under relevant UK legislation; whether discrimination “on racial grounds” or “because of” race; held the appellants were mistreated on the basis of their particular immigration status and not their nationality.
Taiwo v Olaigbe  UKSC 31
Administrative law: federal statute requiring payment of increased compensation to certain automobile dealership employees for overtime work; whether automobile dealership required to pay five current and former service advisors overtime wages; whether service advisors engaged in selling or servicing automobiles and therefore exempted from overtime provisions; interpretation of exemption; relevant government agency issued regulation and abandoned decades old practice of treating service advisors as exempt; whether regulation should receive deference where statute ambiguous; duty of agency to give adequate reasons for decision; government agency failed to provide minimal level of analysis or explanation and relevant regulation cannot carry force of law.
Encino Motorcars LLC v Navarro 579 US (2016)
Human rights: failure to meet loan repayments on home; receivers sought possession of the property; whether court, in entertaining application for possession by private sector owner, is required to consider the proportionality of evicting occupier in light of s 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights (“ECHR”); article 8 does not justify a different order from that which is mandated by the contractual arrangement between the parties particularly where the relevant legislative provisions balance the competing interests of private sector landlords and residential tenants; ECHR is not directly enforceable as between private citizens so as to alter existing contractual rights and obligations; it not, in any case, be possible to read relevant legislation consistently with a requirement to consider proportionality; had court been required to assess proportionality of possession order, the most the appellant could have hoped for would be an order postponing the effect of the possession order for the maximum time permitted by the Housing Act 1980.
McDonald v McDonald  UKSC 28
Employment and industrial law: appellant unfairly dismissed; reinstatement ordered by Employment Tribunal; whether Employment Tribunal erred in law by purporting to reinstate appellant to employment different from that from which she was dismissed where Tribunal has no power to order reinstatement contrary to contractual terms of employment; whether Employment Tribunal sought to impose contractual limitation on appellant in reinstatement order or whether it simply recognised a practical limitation on the scope of the appellant’s work; Employment Tribunal did not seek to alter contractual terms; appeal allowed.
McBride v Scottish Police Authority  UKSC 27