News | 5 Selborne

Nishad Kulkarni has been appointed a part-time Senior Member of the NSW Civil and Administrative Tribunal.
5 Selborne warmly congratulates floor members Sheila Kaur-Bains and Benjamin Zipser on their appointment as judges of the Federal Circuit and Family Court of Australia (Division 2).

Media Releases issued by the Attorney-General, the Hon Mark Dreyfus KC MP, regarding the appointments may be viewed here and here.
Christopher Palmer has been reappointed to the NSW Bar Association’s Alternative Dispute Resolution Committee. He is a member of its Arbitration Subcommittee.
Fiona McNeil has been reappointed to the NSW Bar Association Human Rights Committee.
Benjamin Zipser is presenting to Colin Biggers & Paisley on Standard of Care in Professional Liability Matters in September. The paper will address recent cases concerning the provisions of the Civil Liability Act 2002 (NSW) which have codified the standard of care. Ben is a co-author of the leading practitioner text, Professional Liability in Australia (4th edition).
5 Selborne associate member Shane Doyle KC appeared for Chevron in its successful arbitration award challenge concerning the Gorgon Project, recently upheld by the WA Court of Appeal. The case provides significant guidance on when a court will set aside a bifurcated arbitration proceeding award where the tribunal has already decided the issues.
Peter Wood has been listed as Leading in Commercial Litigation & Dispute Resolution and Recommended in Insolvency & Restructuring in Doyle’s Guide Australia 2022.
5 Selborne associate member Philip Crutchfield KC has been listed as Preeminent in Commercial Litigation & Dispute Resolution and Insolvency & Restructuring and Leading in Class Actions in Doyle’s Guide Australia 2022.
5 Selborne associate member Shane Doyle KC has been listed as Preeminent in Commercial Litigation & Dispute Resolution and Leading in Insolvency & Restructuring and Arbitration in Doyle’s Guide Australia 2022.
Peter Wood has been listed as Leading in Commercial Litigation & Dispute Resolution and Insolvency & Restructuring in Doyle’s Guide NSW 2022.
5 Selborne associate member Philip Crutchfield KC has been listed as Preeminent in Commercial Litigation & Dispute Resolution and Insolvency & Restructuring and Leading in Technology, Media & Telecommunications in Doyle’s Guide Victoria 2022.
5 Selborne associate member Shane Doyle KC has been listed as the Market Leader in Commercial Litigation & Dispute Resolution and Insolvency & Restructuring and Preeminent in Construction & Infrastructure in Doyle’s Guide Queensland 2022.
Stephanie Fendekian presented to Piper Alderman on the topic ADR Clauses in Commercial Contracts: Tips and Traps. The presentation focused on how courts have construed ADR clauses when determining their enforceability.
Peter Wood appeared for a former Deutsche Bank executive in the abandoned ACCC prosecution referred to in the Australian financial press as the ACCC bank cartel case. Pre-trial processes reportedly ran for four years before the case was discontinued.
Peter Wood has been listed in Band 1 for Dispute Resolution in Chambers and Partners Asia-Pacific 2021.
Michelle Hirschhorn has been listed as a leading junior counsel for Tax in Chambers and Partners Asia-Pacific 2021.
5 Selborne associate member Philip Crutchfield KC has been listed as a leading silk for Dispute Resolution and Restructuring/Insolvency (Band 1) in Chambers and Partners Asia-Pacific 2021.
5 Selborne associate member Shane Doyle KC has been listed as a leading silk for Dispute Resolution (Band 1), Construction & Infrastructure (Band 1) and Restructuring/Insolvency (Band 1) in Chambers and Partners Asia-Pacific 2021.
Michelle Hirschhorn has been listed as Preeminent Junior Counsel in Doyle’s Guide of Leading Tax Barristers – NSW, 2020.
Peter Wood has been listed in the Alternative Dispute Resolution, Bet-the-Company Litigation, Construction/Infrastructure Law and Litigation categories in Best Lawyers Australia (2021 Edition).
5 Selborne associate member Philip Crutchfield KC has been listed in the Alternative Dispute Resolution, Banking and Finance Law, Bet-the-Company Litigation, Class Action Litigation, Insolvency and Reorganization Law and Litigation categories in Best Lawyers Australia (2021 Edition).
5 Selborne associate member Shane Doyle KC has been listed in the Bet-the-Company Litigation, Commercial Law, Competition Law, Construction/Infrastructure Law, International Arbitration, Litigation and Oil & Gas Law categories in Best Lawyers Australia (2021 Edition).
5 Selborne associate member Shane Doyle KC is appearing for the Special Purpose Liquidators in the Queensland Nickel litigation.
Christopher Barry KC was lead counsel for MH17 families in the Federal Court class action against Malaysia Airlines. The action has settled on “reasonable” confidential terms.
John Hyde Page has been listed in Doyle’s Guide of Leading Tax Barristers – NSW, 2018.
Christopher Barry KC is appearing for families in the Federal Court class action against Malaysian Airlines relating to the aircraft shot down over Ukraine, recently discussed on ABC Law Report’s Suing Foreign States for Wrongful Deaths.
Sheila Kaur-Bains has been listed in Women in Tax Leaders (4th edition) in the International Tax Review.
Christopher Palmer presented at Legalwise’s Complex Conveyancing Masterclass. The presentation addressed key issues related to the operation of the NSW Supreme Court Real Property List and the real property options case Brannigan v Smith [2017] NSWSC 1201; (2017) 18 BPR 37,193 in which he appeared for the successful plaintiff.
Nishad Kulkarni presented to Norton Rose Fulbright on Corporate Trustee Liquidations. The presentation addressed key issues in light of recent authorities, including Amerind ([2018] VSCA 41) and Killarnee ([2018] FCAFC 40).
Christopher Palmer was on an expert panel at the Lexvoco Sydney In-house Legal Operations Masterclass. The panel discussed innovative ways to deal with disputes, including direct briefing, resourcing options, project management and technology tools.
Peter Wood is appearing for Arrium’s deed administrators in NSW Supreme Court public examinations of individuals about its affairs.
5 Selborne associate member Philip Crutchfield KC is appearing for Arrium’s deed administrators in NSW Supreme Court public examinations of individuals about its affairs.
Peter Wood is appearing for Sirtex in Federal Court proceedings relating to its acquisition by Varian by scheme of arrangement.
Christopher Catt has presented at the Tax Institute’s NSW 11th Annual Tax Forum on freezing and restraining orders under the proceeds of crime legislation.
Nishad Kulkarni has presented to K&L Gates on Corporate Trustee Liquidations. The presentation covered key issues in light of recent developments, including Amerind ([2018] VSCA 41) and Killarnee ([2018] FCAFC 40).
5 Selborne associate member Philip Crutchfield KC is appearing for Herbert Smith Freehills in its dispute against United Petroleum in the Victorian Supreme Court.
Sheila Kaur-Bains and Michelle Hirschhorn have presented on the employment agency provisions in the Payroll Tax Act 2007 as part of Toongabbie Legal Centre’s Tax and Equity CLE at Ashurst.
Nishad Kulkarni has presented to Ashurst on Liquidation of Corporate Trustees. The presentation addressed key issues against the background of the recent judgments in Amerind ([2018] VSCA 41) and Killarnee ([2018] FCAFC 40).
Nishad Kulkarni has presented to Arnold Bloch Leibler on the topic Key Issues in the Liquidation of Corporate Trustees. The presentation addressed new developments, including the recent Amerind appeal ([2018] VSCA 41).
5 Selborne associate member Philip Crutchfield KC is appearing for AMP in the Financial Services Royal Commission.
5 Selborne associate member Philip Crutchfield KC is appearing for ASIC in the Federal Court bank bill swap rate proceedings against Westpac.
Gregory Drew is appearing for customers in the recently commenced class action against Westpac in the Federal Court, which concerns insurance products obtained in connection with financial advisers at Westpac, St George Bank, Bank of Melbourne, BankSA and BT Advice.
5 Selborne hosted an Open Chambers Event for delegates of the International Bar Association conference in Sydney, with presentations on recent developments in international tax law and financial services class actions in Australia.
Peter Fraser has presented to the Gunn Club on the topic “Has the High Court decision in Bywater Investments Ltd v Commissioner of Taxation changed the law regarding corporate tax residency?”. The presentation addressed how auditors might now approach the issue of corporate residency, especially in relation to foreign subsidiaries of Australian multinationals.
The Honourable Ian Vitaly Gzell, a former Justice of the NSW Supreme Court, Queen’s Counsel and 5 Selborne Head of Chambers, has been appointed a Member of the Order of Australia for significant service to the judiciary, to estate and trust law, to the advancement of professional development and to the performing arts.
Benjamin Zipser has co-authored the leading practitioner text, Professional Liability in Australia (3rd edition).

Recent cases

Nishad Kulkarni appeared for the successful plaintiff in Rima Abood v Chakib Carlo Gabrielle [2022] NSWSC 912, a real property dispute concerning appointment of trustees for sale.
Michelle Hirschhorn appeared for the successful Commissioner in Kais Jewellery (Syd) Pty Ltd and Commissioner of Taxation [2022] AATA 425, which concerned entitlement to GST input tax credits for purported acquisitions of scrap gold and assessment to tax of a director on cash withdrawals from a company.
Jennifer Hillier appeared for the successful appellant in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11, which concerned liability in negligence for injuries suffered during a sports competition. The decision is the latest word on breach of duty, causation and “obvious risk” under the Civil Liability Act 2002 (NSW).
Stephanie Fendekian appeared for ASIC in Australian Securities and Investments Commission v Caddick [2021] FCA 1443, in which the Federal Court appointed receivers over Ms Caddick’s property and liquidators to her company. Ms Caddick reportedly defrauded investors of almost $24 million.
Stephanie Fendekian and Fiona McNeil appeared for the successful defendants in Sheppard v Smith [2021] NSWSC 1207, a Real Property List dispute concerning a right of way.
John Hyde Page appeared for the successful taxpayer in Addy v Commissioner of Taxation [2021] HCA 34, in which the High Court of Australia unanimously decided that the working holiday maker tax contravened a non-discrimination clause in the Australia-UK tax treaty because it imposed more burdensome taxation due to nationality. The ruling reportedly affects a significant number of foreign workers.
Michelle Hirschhorn appeared for the successful Commissioner in Origin Energy Ltd v Commissioner of Taxation (No 2) [2020] FCA 409, which concerned deductibility of “capacity charges” paid to the NSW state owned electricity generator, either as a general deduction or as “black hole” capital expenditure.
Benjamin Zipser appeared for the successful defendant in Super Vision Resources Ltd v AC Holdings Co Pty Ltd [2020] NSWSC 65, a Commercial List proceeding involving a claim, rejected by the Court, that property sales were voidable because they were made with intent to defraud creditors.
Gregory Drew appeared for the successful applicant in Sealed Air Australia Pty Ltd v Aus-Lid Enterprises Pty Ltd [2020] FCA 29; (2020) 375 ALR 324, in which the Federal Court comprehensively stated the relevant principles concerning tortious inducement of breach of contract.
Benjamin Zipser appeared for the successful respondent in Flourentzou v Spink [2019] NSWCA 315, which concerned the nature of contributions towards a property. The NSW Court of Appeal clarified the law, having accepted Benjamin’s submission on the issue, that in imposing a constructive trust it is not necessary to trace the specific enhancement in property value resulting from a financial contribution.
John Hyde Page appeared for the successful taxpayer in Addy v Commissioner of Taxation [2019] FCA 1768, in which the Australian Federal Court held that the working holiday maker tax contravened a non-discrimination clause in the Australia-UK tax treaty. The “landmark ruling” on the “backpacker tax” has been reported in the media in eight countries and reportedly may affect around 75,000 working holiday makers.
Christopher Barry KC appeared for the successful horse owners in the Full Federal Court’s refusal of leave to appeal (Zoetis Australia Pty Ltd v Abbott [2019] FCAFC 153) from the Federal Court decision not to order security for costs in the Hendra vaccine class action ([2019] FCA 462). The decisions are the latest word on security for costs in class actions.
Michelle Hirschhorn appeared for the successful Commissioner in Stallion (NSW) Pty Ltd v Commissioner of Taxation [2019] FCA 1306, which concerned entitlement to decreasing luxury car tax adjustments and input tax credits in respect of a purchase of luxury cars.
Benjamin Zipser appeared for the successful plaintiff in Perry v Gao [2019] NSWSC 1022, which concerned a claim for an interest in real property based on undue influence and unconscionable conduct, and the Family Law Act 1975 (Cth).
Michelle Hirschhorn appeared for the Commissioner in SDRQ and Commissioner of Taxation [2019] AATA 2003, which concerned valuation of shares of two related companies for the purposes of capital gains tax.
Benjamin Zipser appeared for the successful plaintiff in Nguyen v Nguyen [2019] NSWSC 131, which concerned constructive trust and resulting trust claims over real property.
Christopher Palmer appeared for the successful applicants in Crupe Pte Ltd v Robertson [2018] NSWSC 2056, which concerned worldwide asset freezing (over USD 120 million) and disclosure orders. Christopher also appeared as sole counsel for the successful applicants on the initial urgent ex-parte application.
Gregory Drew appeared for debenture holders in Smith v Australian Executor Trustees [2018] NSWSC 1584, in which the Court approved settlement of their class action related to the collapse of Provident Capital Ltd. The Court observed that there is “no reason to think that the case could have been settled for any greater sum”. Gregory appeared for the debenture holders throughout the litigation.
Peter Wood appeared for Investa Listed Funds Management Ltd in judicial advice proceedings related to the proposed acquisition of Investa Office Fund by Blackstone Group LP ([2018] NSWSC 1362; [2018] NSWSC 1369).
Benjamin Zipser appeared for the appellant in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, the latest High Court authority on jurisdictional error in administrative decisions.
Benjamin Zipser appeared for the successful parties in complex NSW Supreme Court and Court of Appeal real property litigation ([2017] NSWSC 446; [2017] NSWSC 583; [2018] NSWSC 381; [2018] NSWSC 566; [2018] NSWSC 567; [2018] NSWSC 1063; [2018] NSWCA 185; [2018] NSWSC 1492), which concerned issues of fraud, specific performance, caveats, restraints against the Registrar-General and possession.
Benjamin Zipser appeared pro bono for the successful applicant in Maioha v Minister for Immigration and Border Protection [2018] FCA 1016, which concerned judicial review of the Minister’s cancellation of a New Zealand citizen’s visa on character grounds.
Michelle Hirschhorn appeared for the successful applicant in Australian Workers’ Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA 80, which concerned superannuation entitlements of employees under various awards and enterprise agreements.
Christopher Palmer appeared for the successful applicant in Lets Go Adventures Pty Ltd v Barrett [2018] NSWCA 2, which concerned post-appeal worldwide asset freezing and disclosure orders.
Christopher Palmer appeared for the successful applicant in Zaki v Better Buildings Constructions Pty Ltd [2017] NSWSC 1522, the first NSW Supreme Court authority applying the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). The decision concerned joining an insurer to proceedings and the onus in relation to time limitations.
Christopher Palmer appeared for the successful plaintiff in Brannigan v Smith [2017] NSWSC 1201; (2017) 18 BPR 37,193, which concerned an agreement containing an option to purchase real property and the exercise of the option.
Peter Wood appeared for Harris Farm in Woolworths Ltd v About Life Pty Ltd [2017] NSWSC 1117, which concerned competing claims to a lease in Double Bay.
Peter Wood appeared for Ares Management LP and Ascribe II Investments LLC in In the matter of Boart Longyear Ltd (No 2) [2017] NSWSC 1105 in support of Boart Longyear Limited’s application for approval of altered schemes of arrangement pursuant to section 411 of the Corporations Act 2001 (Cth).
Sheila Kaur-Bains appeared for the successful Chief Commissioner in Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184, which concerned the effect of disclaimers by an object of a discretionary trust on the operation of the grouping provisions in the Payroll Tax Act 2007 (NSW).
Christopher Palmer represented the successful first respondent in the High Court’s disposition of an application for special leave to appeal ([2017] HCASL 119) from the NSW Court of Appeal’s latest word on contractual construction and Sanderson Orders, Zhang v ROC Services (NSW) Pty Ltd; NTI Ltd v Zhang [2016] NSWCA 370; (2016) 93 NSWLR 561. Christopher appeared on the appeal and at trial.
Mark Auld appeared for the successful respondents in Lan v Kaymet Corporation Pty Ltd [2017] NSWCA 52, which concerned assessment of the compensation to be awarded pursuant to the usual undertaking as to damages.
John Hyde Page appeared for the successful administrators in One Steel Manufacturing Pty Ltd (administrators appointed) [2017] NSWSC 21, which concerned defective registration under the Personal Property Securities Act 2009 (Cth).
Nishad Kulkarni appeared successfully against senior counsel in Commissioner for the AFP v Agius [2016] NSWSC 1695, which concerned whether a proposed transfer of mortgage would contravene a restraining order made under the Proceeds of Crime Act 2002 (Cth).