5 Wentworth

Professional Career

Solicitor (corporate and finance) Freehills 1980-1983.
Associate to Hon Justice Sir William Deane at the High Court (1984-85)
Private Secretary and Senior Legal Adviser to Federal Shadow Attorney-General (1986) 
Lecturer (Law) Australian National University (1987-88).
Barrister 1989-
Senior Counsel 2004-

Since commencing practice at the Bar in 1989, Mr Burton has appeared in a broad range of cases with a particular focus on finance and corporate, insolvency, security and equity. He is also an experienced arbitrator and mediator in a broad range of areas and for many years has been on the lists or panels established by the Supreme Court, IAMA, LEADR, ACDC and other organisations. He is also on the Supreme Court panel of expert determiners.

Selected Cases

Capital Duplicators Pty Ltd v Australian Capital Territory [1993] HCA 67 ; (1993) 178 CLR 561 (constitutional – territories power and duties of excise)

Hagan v Waterhouse (1992) 34 NSWLR 308 (equity, trustees’ duties, alleged fraud, limitation acts)

Spedley Securities Limited (in liq) v Bank of New Zealand (1991) (alleged misleading conduct, directors’ duties, apparent authority)

Heydon v NRMA Ltd [2000] NSWCA 374 ;(2000) 51 NSWLR 1 (CA) (alleged professional negligence and alleged misleading conduct)

Commonwealth Bank of Australia v Gain (1997) 42 NSWLR 252 (CA) (scope of farm debt mediation statutory confidentiality provisions)

Commonwealth Bank of Australia v Healey (1999 decisions in Supreme Court, CA and Federal Court) (bank/customer duties, securities)

Labraga v Pomfret [2005] NSWSC 973 (removal of executors/trustees)

Exception Holdings Pty Ltd v Albarran (No 2) [2005] NSWSC 981 (company charges, Corporations Act section 267; subrogation to security rights).   

Stein v Sybmore Holdings Pty Ltd [2006] NSWSC 1004 (Trustee Act section 81 variation of vesting date and beneficiary rights)

Heperu Pty Ltd v Morgan Brooks Pty Ltd & Ors [2007] NSWSC 1438 Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84 – application for special leave granted in part and referred to Full Court in part, [2010] HCATrans 16, 127, 128, settled just before reserved judgment to be delivered 26 August 2010 (conversion, restitution, estoppel, negligence arising out of cheque fraud).

Heperu Pty Ltd v Belle [2009] NSWCA 252, (No 2) [2010] NSWCA 13, Heperu Pty Ltd v Belle (No 3) [2010] NSWCA 339, (No 4) [2011] NSWSC 1151 (inquiry into retained benefit – principles and outcome). (liability of account holder for agent’s misappropriation through account in contract and quasi-contract/restitution, proprietary and restitutionary remedies in relation to retained benefit by a volunteer from misappropriation).

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2008] NSWSC 738 and Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2009] NSWSC 629, (No 3) [2010] NSWSC 1139, appeal judgment [2010] NSWCA 268 , [2010] NSWCA 348, [2011]NSWCA 171 ; special leave application refused (public-private partnership obligations, the law of good faith, numerous aspects of equity, contract and property law, indemnity costs discretion where contractual indemnities, indemnity costs discretion based on unreasonable pursuit of allegations and conduct of case, costs against non-parties (director and guarantor) under old and new regime).

Gett v Tabet [2009] NSWCA 76, appeal to HC dismissed(loss of opportunity damages in medical negligence).

Randall Pty Ltd v Chepan (2009) 73 ACSR 267, [2009] NSWSC 783, 791, 848 (defects in statutory demand, non-compliance with new form, all executors didn’t sign, extension of compliance period).

Boyce v McIntyre [2009] NSWCA 185, (jurisdiction of costs assessors in relation to GST liabilities and interaction of costs agreements with those assessment initiated by non-parties to the costs agreements such as mortgagors and lessees who pay the mortgagee’s or lessor’s legal costs and expenses.

LMC Caravan GmbH & Co KG v GE Commercial Corporation (Aust) Pty Ltd [2010] NSWCA 120, [2009] NSWSC 787 (reservation of title, appropriation, contract terms and interpretation, buyer-in-possession, Sale of Goods Act 1923 (NSW) sections 26, 28 and equivalent provisions in other jurisdictions).

Sahab Holdings Pty Ltd v Registrar-General & Anor [2009] NSWSC 1143, [2010] NSWSC 162, [2010] NSWSC 403 (Real Property Act sections 12(1)(d), 12(3)(b), 12A, 32(6), 42, 45, 49, 121, 122, 136, 138, interaction of powers to correct the register and indefeasibility, Supreme Court Act sections 65, 73. NSWCA judgment reserved.

Residential Housing Corporation Pty Ltd v Esber [2011] NSWCA 25 (obligation of mortgagee in respect of surplus proceeds to subsequent unregistered mortgagee and to mortgagor in equity and under Real Property Act 1900 (NSW) section 58(3)).

Elite Promotions & Management Pty Ltd v 5A Investments Pty Ltd & Kingsway Group Ltd [2011] NSWSC 590 (Brereton J) (rights of set-off of lessor-lessee agreements against registered mortgagee, meaning of “without deduction” clause in lease).

Mr Burton has also appeared in many cases and commercial settlements involving unconscionability principles and loss of opportunity, some in the banking area (securities, foreign currency).

Publications

Founding and current editor of the Journal of Banking and Finance Law and Practice, a co-editor of Weaver and Craigie’s The Law Relating to Banker and Customer in Australia, title editor and contributor to ‘Finance, Banking and Securities’ in The Laws of Australia and author of material on set-off in The Laws of Australia and banking and finance dispute resolution in The Australasian Dispute Resolution Service. Mr Burton has written extensively on topics including negotiable instruments, equity and trusts, and arbitration.  

Memberships

NSW Bar Association, Business Law Section of the Law Council of Australia, Banking and Financial Services Law Association, Fellow of the Commercial Law Association, Australian Institute of Administrative Law.  

Honorary Member of the Centre for International Legal Studies in Vienna, member of the Centre for Independent Studies, Institute of Public Affairs and the Sydney Institute; Director of the Australian Elizabethan Theatre Trust; Procurator (church counsel) of the Presbyterian Church of Australia both federally and in New South Wales, Queensland and Western Australia.