Its raining Calderbank offers! In three separate and unrelated decisions last week the Supreme Court considered both the body of relaw relating to Calderbank Offers and their application to the facts.
Sanelli v Sanelli & Anor
Mukhtar AsJ inSanelliconsidered a very full throated application by the plaintiff for indemnity costs. At [29] Mukhtar AsJ Read the rest of this entry »
Peter Van Onselen writes well…. on subjects of which he knows something about. Mainly the ins and of political strategy and tactics. He isn’t bad at analysing political personalities. Political theory and history is, however, a real walk on the wild side for him. There is no stronger example than his mighty attempt at justifying the Abbot parental leave scheme as being consistent with Liberal/conservative/utilitarian philosphy in Abbott’s scheme is perfectly Liberal.
Van Onsolen uses Liberal touchstones to bolster his case – Menzies and the Forgotten People speech. The former is a Liberal deity, the latter part of the sacred texts of the Party. Nice touch. But intellectually sloppy.
First as to Menzies. The name is not a term and, even if it were, the term is not a philosophy. As to the Forgotten People speech, it was a good, even great speech used by Menzies just after the United Australia Party collapsed and the Curtin became Prime Minister. Menzies, the consummate politician, used to as an early step to give form to a new party and in it he identified the natural constituency, the middle class. It was not an Australian take of “On Liberty”. He wasn’t trying to out Burke Edmund Burke. It was an opening stanza in a concert that ended in a conference in Albury where the Liberal Party was formed.
Quoting from the sacred text is just intellectually dishonest. He says:
The notion that Liberals aren’t supposed to embrace big-picture ideas that promote social policy improvements ignores the words of Menzies when he pointed out that most Australians “see in their children their greatest contribution to the immortality of their race. The home is the foundation of sanity and sobriety; it is the indispensable condition of continuity; its health determines the health of society as a whole.”
Nearly 70 years on, that sounds like a good reason to back a generous parental leave scheme.
In Bernstein v Georgakakis & Anor Beach J analysed an application for removal of a caveat placed in August 2005 over property owned by a sole proprietor but arising out of an agreement between her husband and someone he was in business with. It is a useful judgment in both restating principles but in dealing with equitable interests in this (unusual) fact situation.
His Honour sets out the principles at [5] & [6] regarding the principles applicable in removing caveats under section 90(3) of the TLA, namely:
it is broadly analogous to determination of interlocutoryinjunctions – the power is discretionary;
the caveator has the onus of establishing there is a serious question to be tried that he has an interest in the land; and
the balance of convenience favours maintenance of the caveat until trial;
The evidence
The agreement, reproduced at [7], in this case is exhibit A as an example of what to avoid when seeking to make a claim for an equitable right over property. The agreement seemed to relate to an agreement between the Plaintiff/sole proprietor’s husband and a putative business partner regarding purchase of shares in a pet food business. His Honour forensically analysed the many deficiencies in the agreement, at [17] – [26]. The first observation made was that it consisted of 5 recitals and no operative clauses. The problems included the agreement:
requiring the husband to pay $3 million for 15% share in a company that had not been established at the time of the agreement;
referring to the parties a creditor and debtor respectively. Hardly consistent with an investment;
in one part limiting the interest to $3 million, at another recital registering the interest for not less than $3million.
Unusually in such applications the deponents were cross examined and his Honour found that that sole proprietor never knew of this agreement. In examining the enforceability of the agreement Read the rest of this entry »
An intereting piece in Times Online about a pending settlement in favour of Kate Middleton, bride presumptive of Prince William, for breach of her privacy. The settlement sum, presumably not a confidental agreement, is 10,000 pounds plus costs as well as withdrawal of the photographs and a public apology. Interestingly the photographs in question were not even published in England. That shouldn’t go to liability but I think would be relevant on the question of Read the rest of this entry »
The Guardian has run a two part article on the Ten Rules for Writing Fiction. I am not usually a sucker for numbered lists, you know the ones, 7 habits of highly effective psycopaths, 6 ways of getting to the same point but sounding pretentious about it etc.. Basically the article is well known authors giving their rules. Some take it seriously some less so, eg the first fourt rules Margaret Atwood comes up with are:
1 Take a pencil to write with on aeroplanes. Pens leak. But if the pencil breaks, you can’t sharpen it on the plane, because you can’t take knives with you. Therefore: take two pencils.
2 If both pencils break, you can do a rough sharpening job with a nail file of the metal or glass type.
In yesterday’s Australian there is a report that software writers are yet to see full technical specifications for the planned healthcare identifier regime due to start on July 1 provided enabling legislation introduced by Health Minister Nicola Roxon last week . According to the report the Medical Software Industry Association have yet to see the system developed by the National E -Health Transition Authority. That is a worry. The benefits of putting medical records on an electronic system are obvious. The privacy concerns are equally obvious. Whether it achieves the former and deals with the latter depends on its practical implementation. Just taking about it is not enough. A classic example was a recent episode on the ABC radio program Australia Talks. Lots of talking by the main proponents, includng Dr Mukesh Haikerwal, but it was all just that.