Monthly Archives: April 2020

Moore v Scenic Tours Pty Ltd

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The High Court of Australia unanimously allowed an appeal from the New South Wales Court of Appeal, holding that damages for disappointment and distress for breach of a holiday cruise tour contract were not precluded as damages for “personal injury” by s 16(1) of the Civil Liability Act 2002 (NSW) (‘CLA’).

Facts

Mr Moore and his wife booked a cruise of grand waterways of Europe with Scenic Tours Pty Ltd (‘Scenic’). The cruise was to be on a luxury ship called the Scenic Jewel, and suited the Moores because Mr Moore had undergone spinal surgery and needed to spend significant time sitting down. He chose this tour because he did not want to have to keep packing and unpacking. He gave evidence that he booked the tour 12 months in advance, and used his ‘life’s savings’ to pay for it. The tour commenced in Paris on 31 May 2013, but the river cruise portion along the Rhine, Main and Danube Rivers was scheduled to depart from Amsterdam on 3 June 2013, and to conclude two weeks later in Budapest. However, the Rhine and Main rivers flooded, and the Moores only had three days of cruising. They spent ten days on a bus, and had to change ship at least twice. The cruise fell far short of the Moores’ expectations.

The Moores were lead plaintiffs in representative proceedings for approximately 1,500 disappointed plaintiffs who had booked cruises with Scenic that had been scheduled to depart between 19 May 2013 and 12 June 2013, and had been affected by flooding. Continue reading →

News: The Court’s national video connection

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BELL J: Perhaps, Ms Shaw, before you commence, may I indicate that if at any time either you or Mr Nathan have any difficulty in terms of hearing or seeing the Bench would you please indicate that at the first opportunity.

MS SHAW: I am grateful, your Honour, for that information.

According to the official transcript of proceedings, the High Court of Australia this week heard a criminal appeal ‘FROM CANBERRA BY VIDEO CONNECTION TO SYDNEY, MELBOURNE, ADELAIDE AND DARWIN’. That’s a contrast with its appeals this March, which the transcript described as ‘AT CANBERRA’ (and I can attest placed all seven justices and counsel in Courtroom No. 1.) The High Court has in the past heard chambers or special leave applications by video (e.g. ‘FROM CANBERRA BY VIDEO LINK TO ADELAIDE‘) – a link between two of the Court’s registries – but Cumberland v The Queen [2020] HCATrans 49 appears to go further in several ways. For starters, it’s an appeal (not a mere application), it’s a video ‘connection’ and, most dramatically, that connection is across three states and two territories. A later exchange reveals two still more startling things:

BELL J: Thank you, Mr Nathan. Anything in reply, Ms Shaw? Ms Shaw, can I interrupt you for a moment? We do not – or certainly in this Court I am not hearing any audio. I do not know whether Justices Gageler and Nettle can hear you, but I cannot.

GAGELER J: I cannot.

NETTLE J: I cannot.

MS SHAW: Can your Honours hear me now?

NETTLE J: Yes, thank you.

BELL J: Yes, thank you, Ms Shaw.

MS SHAW: Thank you. That was our fault at this end, your Honours. I apologise.

BELL J: Not at all.

The first part of this excerpt suggests that the three justices were not only not in the same room as Cumberland’s counsel, but themselves in three different cities for the hearing. And the second part hints that Marie Shaw is not in a courtroom at all. Alas, the transcript doesn’t reveal who is where during this historic event in the national court.

Justice Edelman foreshadowed these events in a chambers matter in late March Continue reading →

The Fluctuating Nature of a Partnership Interest: Commissioner of State Revenue v Rojoda Pty Ltd

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By Barry Diamond
Senior Fellow in the Melbourne Law Masters and PwC Partner

When a partner ‘confirms’ she holds land on trust for other partners upon dissolution of the partnership, is this a confirmation of a pre-existing relationship, or a new trust for the purposes of stamp duty?

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7 arose when a registered proprietor of land in Western Australia and a partner in a partnership, ‘confirmed’ that she held the land on trust for the partners in their respective shares following dissolution of the partnership. If the ‘confirmation’ was a declaration of new trust for the partners, duty was chargeable under the Duties Act 2008 (WA). However, if it was merely an acknowledgement of the same pre-existing trust relationship, no duty was chargeable. So, what was the legal nature of the pre-existing relationship between the partners? Did that differ to the relationship following the ‘confirmation’? Resolution of this question meant identifying the legal nature of the relationship between the partners and particularly the nature of a partnership interest.

The five-member High Court was divided 4:1. The majority (Bell, Keane, Nettle, Edelman JJ jointly) ruled in favour of the Commissioner of State Revenue that a new trust was created. Gageler J dissented and held that it was simply a confirmation of a pre-existing relationship. The respective judgments enlighten us on the different perspectives of the nature of a partnership interest, and I have considered both. There are other issues raised in the judgment, but I have not sought to discuss them here.

Continue reading →