RECENT APPEARANCES

Supreme Court of South Australia
HL (Qld) Nominees Pty Ltd (atf the Harts Australia Staff Superannuation Fund) (respondent) v Merrell Associates Ltd (appellant)
Heard 3 February 2010, Adelaide
Nyland, Vanstone and Gray, JJ. – decision reserved
Claim for possession of land pursuant to a second mortgage and priority agreement. The plaintiff/respondent was acting trustee of a superannuation fund, appointed pursuant to section 134 of the Superannuation Industry (Supervision) Act. 
The appellant claimed that the second mortgage had not vested in the respondent, defeating the respondent’s indefeasible title as second mortgagee, relying on construction of the Superannuation Industry (Supervision) Act, the Trustee Act (SA) and s 109 of the Commonwealth Constitution. 
The appellant further claimed that the priority agreement was unenforceable for want of consideration or had been frustrated.
And see decision at first instance, Layton, J.: [2009] SASC 165
Appeared for plaintiff /respondent with Roger Sallis
Instructed by Australian Government Solicitor, Adelaide

Commonwealth Administrative Appeals Tribunal
YFFM v ASIC
Heard 10 December 2009, Perth
Senior Member Penglis
Application for review of an ASIC banning order made under the Corporations Act insider trading provisions. 
Appeared for respondent with David Gilbertson
Instructed by ASIC, Perth

Federal Court
Commissioner of Taxation v BHP Billiton Finance Ltd and others
Heard 23, 24 November 2009, Melbourne
Sundberg, Stone and Edmonds, JJ.
Appeals concerning the Commissioner’s disallowance of deductions in respect of bad debts written of by internal finance company.
Appeals concerning capital allowance deductions reduced by the Commissioner’s application of Division 243, in respect of limited recourse debt.
And see decision at first instance, Gordon, J.:[2009] FCA 276
Appeared for appellant  with the Solicitor-General, Stephen Gageler, Q.C., Michael Flynn, Lachlan Armstrong
Instructed by Australian Government Solicitor, Melbourne

Federal Court
Watson v Commissioner of Taxation
Heard 12 November 2009, Adelaide
Dowsett, Stone and Bennett, JJ.
Appeal concerning the application of Div 35 of the Income Tax Assessment Act 1997 headed “Deferral of losses from non-commercial business activities”.   Mr Watson claimed that payments he received under a personal income protection insurance policy were liable to be included as assessable income of the business for the purposes of the Division.  The Commissioner treated losses in the operation by Mr Watson of his business as a deferred expense, capable of being carried forward, but not capable of being a deduction against the assessable income from the personal income protection policy.
And see decision at first instance, Mansfield, J.: [2008] FCA 1173
Appeared for the respondent with Stuart Cole
Instructed by Australian Government Solicitor, Adelaide

Federal Court
Commissioner of Taxation v Yalos Engineering Pty Ltd [2009] FCA 1569
Heard 20 October 2009
Jessup, J.
Commissioner’s appeal from decision of the AAT concerning the application of the personal services income provisions in Part 2-42 of the Income Tax Assessment Act 1997, in particular whether the respond for the purposes of Division 87.
Appeared for the applicant
Instructed by ATO Legal

Supreme Court of South Australia
HL (Qld) Nominees Pty Ltd (atf the Harts Australia Staff Superannuation Fund) v Jobera Pty Ltd and another
Heard 30 June to 8 July 2008
Layton, J. – decision reserved
Claim for possession of land relying on a second mortgage and priority agreement. The plaintiff was acting trustee of a superannuation fund, appointed pursuant to section 134 of the Superannuation Industry (Supervision) Act.  The defendants claimed want of consideration and proper execution of the transaction documents, breach of director’s duty and innocent misrepresentation, common mistake, frustration and misleading and/or deceptive conduct in breach of provisions of the Trade Practices Act 1975. At trial, the defendants, further, alleged that the second mortgage had not vested in the plaintiff.  Argument included submissions as to indefeasibility of title, estoppel by deed and construction of the Superannuation Industry (Supervision) Act and the Superannuation Guarantee (Administration) Act 1992.
Appeared for plaintiff  with Roger Sallis
Instructed by Australian Government Solicitor, Adelaide

High Court of Australia
Getzler and another v Coadys (a firm) [2008] HCATrans 211
23 May 2008, Melbourne
Gleeson, C.J. and Kiefel, J.
Application for special leave to appeal from the Victorian Court of Appeal’s decision that a solicitor’s client service agreement was not in breach of the Legal Practice Act 1996, sections 97-99.  Special leave refused.
Appeared for respondent with Anna Robertson
Instructed by Wisewoulds

Federal Court, Sydney
W.R. Carpenter Holdings Pty Ltd v Commissioner of Taxation
21 May and 12 March 2008
Edmonds, J.
Directions hearings in a series of related transfer pricing matters.
Appeared for respondent  with Peter Sest
Instructed by Australian Government Solicitor, Sydney

Federal Court, Adelaide
Watson v Commissioner of Taxation [2008] FCA 1173
Mansfield, J.
Appeal from a decision of the Commissioner treating losses in the operation by Mr Watson of his business as a deferred expense, capable of being carried forward, but not capable of being a deduction against other assessable income from a personal income protection policy.  Mr Watson argued that payments he received under the personal income protection insurance policy were liable to be included as assessable income of the business for the purposes of Div 35 of the Income Tax Assessment Act 1997 headed “Deferral of losses from non-commercial business activities”.   Appeal dismissed.
Appeared for the respondent with Stuart Cole
Instructed by Australian Government Solicitor, Adelaide

Supreme Court, Melbourne
Re: Coles Group
Appeared 9 November 2007
Robson, J.
Application for approval of the Coles and Wesfarmers Limited scheme of arrangement.  Appeared in response to Court’s request for ASIC’s view of the ambit of the Court’s discretion to approve a scheme of arrangement when ASIC has provided a “no objection” letter under section 411(17) of the Corporations Act 2001.
Appeared for ASIC
Instructed by ASIC

Supreme Court, Melbourne
Plzen Pty Ltd v P&O Wharf Management Limited [2007] VSC 318
Habersberger, J. [2007] VSC 318
Appeal against the order of a Master for pre-trial discovery.  The issue was whether, for the purposes of Rules 32.05 and 32.09, Plzen Pty Ltd had reasonable cause to believe it might have a right to obtain relief under the terms of a joint venture agreement between the parties.
Appeared for Plzen Pty Ltd with Philip Crutchfield
Instructed by Clayton Utz