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| 20/05/2013 10:23 AM | | |
CONTRACT – supply and installation of crane and tray top – failure of crane to perform to specifications – crane defects rectified by defendant – tray top short in length – whether any loss claimed was suffered – expert evidence – failure to establish loss claimed – failure to mitigate loss – Goods Act 1958 (Vic) ss 19, 61 – whether implied terms negatived by contract – interpretation of exclusion clauses.
TORT – negligence – negligent misstatement – whether claims negatived by contract. |
| Link to announcement: Hogan v BPW Transpec [2013] VSC 249 (16 May 2013) |
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| 20/05/2013 10:21 AM | | |
CONTRACTS – construction of employment contracts within long term employment relationship – where employee continued in same position in the employ of a company of international company group – where employment continued past initial fixed term – effect of secondment to new location within group – whether intention to vary, replace or terminate initial contract of employment – whether original employer continued or different group member became employer – objective test of identification of intention to contract and of contracting parties |
| Link to announcement: Cohen v iSOFT Group Pty Limited [2013] FCAFC 49 (8 May 2013) |
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| 20/05/2013 10:17 AM | | |
ADMINISTRATIVE LAW – Judicial review – Review of Magistrates’ Court decision – Default judgment – Application to set aside default judgment – Whether default judgment should have been set aside – Application to quash Magistrates’ Court order refusing to set aside judgment – No error of law – Application refused. |
| Link to announcement: Cheok v Papanastassis [2013] VSC 241 (10 May 2013) |
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| 20/05/2013 10:15 AM | | |
PRACTICE AND PROCEDURE – Transfer into Commercial Court – Summons issued prior to transfer – Applications for summary judgment.
COSTS – Application for indemnity costs and to fix a ‘gross sum’.
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| Link to announcement: Primebroker Securities Ltd v Lomas [2013] VSC 223 (10 May 2013) |
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| 20/05/2013 10:13 AM | | |
INTELLECTUAL PROPERTY – Patents – Construction of claims – Infringement of claims – Applicable principles – Section 116 Patents Act 1990 (Cth) – Amended patent – Whether reference to specification without amendment and other Patent Office documents permissible in construction – Skilled addressee and skilled team
INTELLECTUAL PROPERTY – Patents – Validity – Novelty – Prior art and common general knowledge
INTELLECTUAL PROPERTY – Patents – Validity – Inventive step – Common general knowledge and s 7(3) documents – Cripps question – Inventive journey of patentee – Secondary indicators – Commercial success – Conduct of competitors
INTELLECTUAL PROPERTY – Patents – Manner of new manufacture
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| Link to announcement: Ranbaxy Laboratories Limited v AstraZeneca AB [2013] FCA 368 (23 April 2013) |
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| 20/05/2013 10:11 AM | | |
BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 2002 (Vic) – Adjudication conducted under Part 3 Division 2 of the Act – Apparent conflict between s 10B(2)(c) with s 11(1)(b)(iv) of the Act – Conflict resolved by application of statutory construction principles –Adjudicator erred in statutory construction – Jurisdictional error – Certiorari granted – Determination of adjudicator quashed and matter remitted for determination in accordance with the law.
STATUTES INTERPRETATION - Apparent conflict between provisions of an Act – Conflict resolved by application of statutory construction principles – Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [69]- [71] considered and applied. |
| Link to announcement: Maxstra Constructions Pty Ltd v Gilbert & Ors [2013] VSC 243 (10 May 2013) |
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| 20/05/2013 10:08 AM | | |
TRADE PRACTICES — Misleading and deceptive conduct in a land sale — Section 52 Trade Practices Act 1974 (Cth) — Whether purchaser misled — Reliance on representations — Purchaser gives unsatisfactory evidence of reliance — Principles in Gould v Vaggelas [1984] HCA 68; (1985) 157 CLR 215 considered and applied — Inference of reliance able to be drawn — Inference of reliance not precluded by the unsatisfactory direct evidence of the representee. |
| Link to announcement: Lord Buddha Pty Ltd v Harpur [2013] VSCA 101 (9 May 2013) |
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| 20/05/2013 10:05 AM | | |
LANDLORD AND TENANT – Retail premises lease – Renewal – Executory contract between tenant under retail premises lease and purchaser of reversion under uncompleted contract of sale of reversion for new lease of premises to commence upon expiration of existing retail premises lease – Whether executory contract a ‘renewal’ of lease within meaning of Retail Leases Act 2003 (Vic) – Whether executory contract valid and enforceable though not a ‘renewal’ – Assignment – Purported assignment by tenant to new tenant (‘assignee’) of both remainder of term of lease and executory contract for new lease – Whether assignment effective to convey both benefit and burden of executory contract for new lease – Later completion of contract of sale of reversion – Whether purchaser of reversion entitled to enforce executory contract for new lease as against assignee – Guarantee – Construction of guarantee – Whether guarantee of assignee’s obligations extending to assignee’s obligations under executory contract for new lease – Whether guarantee of obligations under executory contract for new lease a covenant running with land – Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242, distinguished; P A Swift Investments v Combined English Stores Group Plc [1988] UKHL 3; [1989] AC 632, Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; (2008) 234 CLR 237, applied – Retail Leases Act 2003 (Vic), ss 3, 8, 9(b), 21(4); Property Law Act 1958 (Vic), ss 140, 141, 142 and 154; Transfer of Land Act 1958 (Vic), ss 40, 42(2)(e) and 66.
APPEAL – Practice and Procedure – Application for leave to appeal out of time from decision of Victorian and Administrative Tribunal (‘VCAT’) – Need to show good reason for delay – Retail premises lease – Application for leave to appeal granted but appeal dismissed – Picken v President etc of the Shire of Alexander [1890] VicLawRp 65; (1890) 16 VLR 309, 311; In the Marriage of J F and J E McAleese (1977) 3 Fam LR 11604, referred to – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(2). |
| Link to announcement: Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106 (10 May 2013) |
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| 20/05/2013 10:03 AM | | |
REAL PROPERTY – Sale of land – Contract – Interpretation – Time for Registration of Plan of Subdivision – Whether contract validly rescinded by purchasers – Construction – Whether Plan not registered on ‘relevant date’ – Period of time for extension – Whether date ‘fixed’ – Whether ‘other period’ specified – Solid Investments Aust Pty Ltd v Clifford [2010] VSCA 59; (2010) 27 VR 41, Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 followed – Sale of Land Act 1962 (Vic) s 9AE(2). |
| Link to announcement: Harofam Pty Ltd v Scherman [2013] VSCA 104 (10 May 2013) |
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| 20/05/2013 10:02 AM | | |
REAL PROPERTY – Sale of land – Contract – Interpretation – Time for Registration of Plan of Subdivision – Whether contract validly rescinded by purchasers – Construction – Whether Plan not registered on ‘relevant date’ – Period of time for extension – Whether date ‘fixed’ – Whether ‘other period’ specified – Solid Investments Aust Pty Ltd v Clifford [2010] VSCA 59; (2010) 27 VR 41, Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 followed – Sale of Land Act 1962 (Vic) s 9AE(2). |
| Link to announcement: Harofam Pty Ltd v Allen & Ors [2013] VSCA 105 (10 May 2013) |
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| 20/05/2013 10:00 AM | | |
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – ORDERS SET ASIDE OR VARIED – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the learned primary judge had established that there was a serious question to be tried and that the balance of convenience favoured the granting of injunctive relief, conditional upon the appellant (in this proceeding) paying the amount of the guarantee into court – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – whether the primary’s judge’s discretion miscarried
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where there was a contract under which the respondent undertook to provide drilling services to the appellant – where the appellant was granted an interlocutory injunction to restrain the respondent from calling on a bank guarantee which the appellant had procured in favour of the respondent – where the appellant contended that the learned primary judge erred in the exercise of the discretion to grant interlocutory relief – where there was a dispute about the proper construction of the contractual clause concerning the performance bond – where the appellant contended that, by virtue of its accrued rights, it was not obliged to return the performance bond, notwithstanding termination of the contract by the respondent – where the respondent contended that the appellant had no accrued rights and was obliged to return the performance bond – whether the proper construction of the contract obliged the appellant to return the performance bond – whether serious case to be tried
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| Link to announcement: Lucas Drilling Pty Limited v Armour Energy Limited [2013] QCA 111 (14 May 2013) |
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| 7/05/2013 1:47 PM | | |
CORPORATIONS LAW – Application by liquidator for directions – directions sought regarding contact of sale of land – direction sought not merely in a commercial or business matter – direction given in amended form – Corporations Act 2001, s 479(3). |
| Link to announcement: Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 1) [2013] VSC 209 (20 February 2013) |
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| 7/05/2013 1:46 PM | | |
PROPERTY – Removal of caveats – Relevant principles – Balance of convenience favourable to the removal of caveats. |
| Link to announcement: Re Essendon Apartment Developments Pty Ltd (in liquidation) (No 2) [2013] VSC 210 (2 May 2013) |
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| 7/05/2013 1:45 PM | | |
CONVEYANCING - FROM CONTRACT TO COMPLETION - PURCHASE MONEY - INTEREST ON PURCHASE MONEY - EFFECT OF DELAY
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - ELECTION AND RESCISSION - GENERALLY
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - VENDOR'S REMEDIES - RESCISSION OR TERMINATION - ENTITLEMENT TO
CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - GENERALLY - OTHER MATTERS |
| Link to announcement: MCFARLANE v REFFOLD [2013] SASCFC 31 (24 April 2013) |
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| 7/05/2013 1:42 PM | | |
PRACTICE AND PROCEDURE – Application to re-open case – Fresh evidence – Reasons for decision on liability published – Damages still to be assessed. |
| Link to announcement: Nicholson v Hilldove Pty Ltd & Ors [2013] VSC 231 (7 May 2013) |
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| 7/05/2013 11:31 AM | | |
Thursday 11 April 2013
ASIC today provided an update on the proposal to introduce a national examination for financial advisers.
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| Link to announcement: 13-078MR Update on financial advisers exam |
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| 7/05/2013 11:30 AM | | |
Monday 29 April 2013
Following an investigation into an unlicensed and fraudulent financial services business, ASIC has successfully applied to the Supreme Court of Queensland for three South-East Queensland based companies to be wound up.
ASIC alleged Secured Collateral Pty Ltd (Secured Collateral), Diversified Collateral Pty Ltd (Diversified Collateral), Intra Management Pty Ltd (Intra Management) and their respective sole directors, Dylan Robson, Keiron Michael Weertman, and Shane Rodney Hasell, operated an unlicensed and fraudulent financial services business that defrauded investors of approximately $1,000,000 between May and October 2012. |
| Link to announcement: 13-089MR ASIC obtains Supreme Court orders against unlicensed and fraudulent Gold Coast based financial services business |
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| 7/05/2013 11:28 AM | | |
Monday 29 April 2013
A former Bell Potter Securities adviser has been sentenced for dishonest conduct involving more than $1.7 million. |
| Link to announcement: 13-091MR Former Bell Potter adviser sentenced for dishonest conduct |
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| 7/05/2013 11:27 AM | | |
Wednesday 1 May 2013
ASIC today released its annual report for the 2012 calendar year into the supervision of registered liquidators. ASIC released its first annual report for the 2011 calendar year.
Key points:
- ASIC completed more than 200 reviews examining issues including practitioner independence, competence and remuneration
- There was a 10% increase in inadequate declarations relating to disclosure about independence. More than half of all declarations in 2012 were considered inadequate
- There were 19 registered liquidators subject to formal investigation or enforcement action at the end of 2012
- 69% of reports of alleged misconduct against registered liquidators resulted in educative outcomes for those making the report
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| Link to announcement: 13-094MR ASIC reports on supervision of registered liquidators |
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| 7/05/2013 11:26 AM | | |
Monday 6 May 2013
ASIC has banned James Pearson, of Perth, Western Australia, from providing financial services for three years for market rigging.
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| Link to announcement: 13-099MR ASIC bans Perth financial adviser for three years |
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| 7/05/2013 11:25 AM | | |
ASIC has cancelled the Australian financial services (AFS) licence and Australian credit licence of All Class Insurance Brokers Pty Ltd (All Class), after it went into liquidation.
On 17 April 2013 Darren Vardy of RMG Partners was appointed as liquidator of NSW-based All Class.All Class’s AFS licence required that:
- it be able to pay all its debts, and
- its total assets do not exceed its total liabilities.
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| Link to announcement: 13-100MR ASIC cancels licences of All Class Insurance Brokers |
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| 2/05/2013 2:39 PM | | |
COPYRIGHT – infringement of copyright in photographs – compensatory damages – additional damages for flagrant infringement
COPYRIGHT – moral right of attribution of authorship
COPYRIGHT – co-ownership of copyright – whether independent right to sue for infringement |
| Link to announcement: Corby v Allen & Unwin Pty Limited [2013] FCA 370 (24 April 2013) |
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| 2/05/2013 12:09 PM | | |
CORPORATIONS – Family trustee company wound up on the just and equitable ground where irretrievable breakdown – Application by liquidator for directions – Company’s only assets three undeveloped lots of land – Proceeds of sale of one property likely to be sufficient to meet current liabilities – Whether liquidator justified in selling all property – Corporations Act 2001 (Cth) s 479(3), Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 54.02. |
| Link to announcement: Re Inon Nominees Pty Ltd (in liquidation) [2013] VSC 211 (30 April 2013) |
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| 2/05/2013 12:02 PM | | |
CORPORATIONS – Application to set aside statutory demand under section 459G of the Corporations Act 2001 (Cth) – Whether demand for “debt” within meaning of section 459E of the Corporations Act 2001 (Cth) – Sum demanded was for repayment of part payment made under contract for supply of goods – Contract terminated by purchaser and claim for repayment made by reason of total failure of consideration – Finding no genuine dispute or offsetting claim – Application dismissed. |
| Link to announcement: IMO Leemon Pty Ltd [2012] VSC 642 (21 December 2012) |
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| 2/05/2013 12:01 PM | | |
CORPORATIONS – External administration – Application by liquidators for remuneration in connection with liquidation of responsible entity of managed investment scheme. |
| Link to announcement: IMO Traditional Values Management Limited (in liq) [2012] VSC 650 (14 December 2012) |
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| 2/05/2013 11:55 AM | | |
PROCEDURE – Application to stay proceeding – Time for making application – Parties agreed to take no steps while appeal pending in respect of separate proceeding – Whether any entitlement to make application for stay waived because of delay or because defence filed – Civil Procedure Act 2010 (Vic), s 18 considered
PROCEDURE – Court may rely upon what is disclosed by the record in determining whether there is a res judicata – Court may have regard to material establishing what was raised and determined in earlier proceeding when determining whether there is an issue estoppel or Anshun estoppel
ESTOPPEL – Res Judicata – Issue estoppel – Anshun estoppel – Wide ranging claims made in first proceeding including allegations of misleading or deceptive conduct, fraudulent misrepresentation, unconscionable conduct, negligence – Whether claim of for deceit could be pursued in later proceeding – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, considered – Whether special circumstances apply where litigants represent themselves. |
| Link to announcement: Sahin v NAB & Anor [2012] VSCA 317 (18 December 2012) |
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| 2/05/2013 11:52 AM | | |
SALE OF LAND – Amendment of plan of subdivision – Whether amendment of subdivision materially affected the lot – Whether purchaser entitled to rescind the contract – Whether purchaser entitled to repayment of deposit from vendor – Sale of Land Act 1962 (Vic) ss 9AC, 9AF.
STATUTES – Interpretation – Sale of Land Act 1962 (Vic) s 9AC. |
| Link to announcement: Lockwood v PSP Investments Pty Ltd [2013] VSC 10 (2 May 2013) |
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| 29/04/2013 12:09 PM | | |
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| Link to announcement: Maxstra Constructions Pty Ltd v Active Crane Hire Pty Ltd [2013] VSC 177 (26 April 2013) |
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| 29/04/2013 11:56 AM | | |
PRACTICE AND PROCEDURE – Application by plaintiff to reopen its case to amend its particulars of loss and damage and to lead further evidence in support – Relevant principles applicable to threshold issue in view of the fact that this was the second application of the plaintiff to reopen this case – Relevant principles to granting leave to reopen a party’s case after the trial concludes and after judgment – Application refused. |
| Link to announcement: NCON Australia Ltd v Spotlight Pty Ltd (No 6) [2013] VSC 186 (19 April 2013) |
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| 29/04/2013 11:55 AM | | |
CORPORATIONS – Application by liquidators for directions – Whether or not the Universal Distributing lien extends to the costs of the application for directions – Whether or not the applications were necessary and thus attracted the Universal Distributing lien – Corporations Act 2001, s 479(3). |
| Link to announcement: Re Crown Meats Pty Ltd (in liq) [2013] VSC 118 (5 April 2013) |
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| 17/04/2013 3:16 PM | | |
PRACTICE AND PROCEDURE – application for leave to appeal – application referred to a Full Court – discretion to refer to a Full Court
PATENTS – appeal to a Full Court – need for leave |
| Link to announcement: Research Affiliates LLC v Commissioner of Patents [2013] FCA 329 (12 April 2013) |
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| 17/04/2013 3:14 PM | | |
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES, RIGHTS, PERMITS, LICENCES AND LEASES ETC – EXPLORATION TITLES – NATURE AND EXTENT OF INTEREST – where the second respondents entered into two separate contracts for the assignment of an exploration permit with the applicant and the first respondent – where the applicant and first respondent both lodged caveats pursuant to s 152 Mineral Resources Act 1989 (Qld) to prevent ministerial approval being granted for any further assignment – where both the applicant and first respondent sought and were granted Land Court orders that their respective caveats be continued until further order of the Land Court – where both the applicant and first respondent commenced Land Court proceedings seeking the removal of the other's caveat and the specific performance of their respective contracts with the second respondents – whether the Land Appeal Court erred in finding that the first respondent had the better equitable interest CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first and second respondents entered into a contract for the assignment of an exploration permit – where clause 3.1 of the contract contained a condition precedent to completion – where the Land Appeal Court found that the second respondent sellers were not entitled to terminate and thus, the first respondent buyer had an equitable right to enforce the contract – where the applicant contended that the Land Appeal Court erred in so finding –whether the first respondent had an obligation to notify the second respondents of its acceptance of the s 31 Native Title Act Agreement within a specified time pursuant to clause 3.1 – whether the first respondent's rights depended on the fulfilment of a condition precedent in clause 3.1 – whether the first respondent had an enforceable interest in respect of an exploration permit at 30 March 2010 |
| Link to announcement: Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) & Ors [2013] QCA 79 (12 April 2013) |
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| 17/04/2013 3:09 PM | | |
CONTRACT – Abandonment – Conduct and factors relevant to mutual intention to abandon contract – Objective assessment.
CONTRACT – Termination – Whether discussions amounted to an agreement to terminate contract.
CONTRACT – Construction – Whether termination clause required notice to be given.
CONTRACT – Enforceability – Whether conduct gave rise to estoppel, waiver and misleading or deceptive conduct.
CONTRACT – Penalty – Whether liquidated damages clause was extravagant and unconscionable.
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| Link to announcement: Cedar Meats Pty Ltd v Five Star Lamb Pty Ltd [2013] VSC 164 (12 April 2013 |
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| 17/04/2013 3:07 PM | | |
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the parties entered into a contract for the sale of property – where the respondents failed to pay the balance deposit of $204,000 when required by the contract, or at a later date to which an extension was given, as well as the purchase price – where after the respondents' failure to complete the contract, the appellants gave notice of termination of the contract and demanded payment of the balance deposit – where the appellants sought summary judgment in the applications jurisdiction on the deposit due and owing, including interest and costs on an indemnity basis – where there was no dispute of fact and the only issue was as to the construction of the contract – where the primary judge found that it was not an appropriate issue for determination in the applications jurisdiction – where the primary judge considered it possible that the respondents would prove to have a defence to the claim, and that because the matter was one which required detailed and considered submissions, it should proceed to trial – where on appeal, the respondents submitted that the appeal was one from the exercise of a discretion – where the primary judge did not purport to exercise any residual discretion, not being satisfied of either of the matters in r 292(2)(a) and (b) of the Uniform Civil Procedure Rules – where the question of construction was relatively straightforward – whether the primary judge was correct in concluding that the statutory pre-conditions for the exercise of the discretion to give summary judgment had not been made out by the appellants
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties entered into a contract in standard REIQ form for the sale of property – where the respondents failed to pay the balance deposit of $204,000 when required by the contract, or at a later date to which an extension was given, as well as the purchase price – where after the respondents' failure to complete the contract, the appellants gave notice of termination of the contract and demanded payment of the balance deposit – where the contract provided for recovery of any unpaid part of the deposit as a liquidated debt – where the contract provided for the seller to have remedies in the event of termination for the buyer's default including a right to resell the property and a right to recover damages of any unpaid part of the deposit as a liquidated debt – whether, on the proper construction of the contract, the appellants had the right to recover the unpaid deposit as a liquidated debt only if the contract were affirmed – whether, on the proper construction of the contract, the appellants were entitled to recover the deposit in addition to the rights provided in the event of termination for default
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF THE COURT – COSTS – where on application for summary judgment, the appellants sought indemnity costs and argued on appeal that costs of both the application and the appeal should be awarded on that basis – where the contract entitled the seller to claim damages for loss suffered from the buyers’ default, including legal costs on an indemnity basis – where there had been no claim for damages – whether it was the intention of the parties to the contract for payment of costs to be on an indemnity basis – whether the appellants established a clear right under the contract to warrant the exercise of the costs discretion in favour of granting indemnity costs |
| Link to announcement: Willmott & Anor v McLeay & Anor [2013] QCA 84 (16 April 2013) |
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| 11/04/2013 3:06 PM | | |
APPEAL - application for leave to appeal - CONTRACTS - public policy - contract between cohabiting unmarried parties that one will make a payment to the other in defined event of separation - held that no defence based on public policy arguable |
| Link to announcement: Mohamed v Mohamed [2013] NSWCA 65 (27 March 2013) |
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| 11/04/2013 3:04 PM | | |
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – WARRANTIES – where the second respondent, a company controlled by the first respondents, entered into a contract of sale with the second appellant for the purchase of a Winnebago – where an air conditioning unit installed in the Winnebago caught fire and substantially destroyed the shed, and the contents of the shed, in which it was parked – where, following the fire, the first respondents elected to sell the farm land on which the second respondent conducted a tomato farming business – where the second appellant was held liable to the second respondent for breach of an implied warranty under s 71 of the Trade Practices Act 1974 (Cth) and s 17 of the Sale of Goods Act 1896 (Qld) – where the appellants were ordered to pay the second respondent damages for damage to property and economic loss – whether the second respondent’s economic loss following the sale of the farm land was caused by the breach of the implied warranty TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – LIABILITY OF MANUFACTURERS OR IMPORTERS FOR DEFECTIVE GOODS – where the first appellant manufactured the Winnebago purchased by the second respondent – where the third appellant imported the air conditioning unit installed in the Winnebago – where the air conditioning unit caught fire and substantially destroyed the shed, and the contents of the shed, in which it was parked – where, following the fire, the first respondents elected to sell the farm land on which the second respondent conducted a tomato farming business – where the first and third appellants were held liable to the second respondent under s 74B and s 74D of the Trade Practices Act 1974 (Cth) – where the appellants were ordered to pay the second respondent damages for damage to property and economic loss – whether the second respondent’s economic loss following the sale of the farm land arose “by reason that” the goods were not reasonably fit for purpose or were not of merchantable quality DAMAGES – GENERAL PRINCIPLES – MITIGATION OF DAMAGES – PLAINTIFF’S DUTY TO MITIGATE – where the second respondent, a company controlled by the first respondents, conducted a tomato farming business – where a fire destroyed the packing shed and plant – where, following the fire, the first respondents elected to sell the farm land on which the second respondent conducted its tomato farming business – where the primary judge held that the second respondent’s loss of income was caused by the fire, notwithstanding the sale of the land – whether the loss of profits from the tomato farming business after the sale of the farm land were caused by the fire – whether the second respondent failed to mitigate its loss by not recommencing the tomato farming business – whether the loss of sugar cane revenue was caused by the sale of the farm land or the wrongful conduct of the appellants – whether the first respondents, by selling the land, received a windfall which should have been brought into account
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| Link to announcement: Knott Investments Pty Ltd & Ors v Fulcher & Ors [2013] QCA 67 (2 April 2013) |
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| 11/04/2013 2:59 PM | | |
CONTRACT ― Sale of land ― Sale of undeveloped and forested land for subdivisional development ― Occurrence of past suicide on land ― Non disclosure by vendor to purchaser of that fact ― Subsequent discovery of event by purchaser ― No assertion by vendor of wrongful silence by vendor on a material matter ― Agreement to extend completion date of contract despite discovery ― Purchaser failed to complete and failed to remedy default ― Vendor’s rescission ― Purchaser’s action to annul contract on the grounds of misleading and deceptive silence ― Vendor’s application for summary dismissal ― Application granted
FAIR TRADING ― Misleading and deceptive conduct ― “Engaging in conduct“ ― Conduct by silence ― Mere silence ― Elements of liability ― Requirement for materiality ― Requirement for reliance and being led into error ― Fair Trading Act ss 3, 9
PRACTICE AND PROCEDURE ― Summary dismissal ― Applicable test under Civil Procedure Act ― “No reasonable prospect of success” ― Differentiation from established test under Rules of Court for summary judgment ― Civil Procedure Act ss 63, 64 ― Rules of Court r 22, 23 |
| Link to announcement: Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (5 April 2013) |
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| 11/04/2013 2:56 PM | | |
LEGAL PRACTITIONER – Barrister – Application to restrain defendant from retaining senior counsel in this proceeding – Application brought under inherent jurisdiction and to enforce duties of confidence and loyalty – Application granted |
| Link to announcement: Dale v Clayton Utz (No 2). [2013] VSC 54 (26 March 2013) |
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| 11/04/2013 2:52 PM | | |
PRACTICE AND PROCEDURE – Overarching obligations – Issue arising of whether breach of overarching obligations by expert witness and by solicitors instructing that expert has occurred – Where court proposes to make orders on its own motion – Directions proposed – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic). |
| Link to announcement: Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (No. 6) [2013] VSC 159 (9 April 2013) |
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| 11/04/2013 2:49 PM | | |
APPEAL - error in process of fact finding - failure to examine all material relevant to central issue - new trial required
CONTRACT - whether transaction loan to appellant or investment in third party company - whether respondents' case contrary to compelling inference
CONTRACT - post-contractual conduct - letter from respondents' solicitor to third party - whether letter contained admissions adverse to respondents' interests
EVIDENCE - whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness - client legal privilege - where respondents gave evidence at trial about solicitor's advice - whether respondents waived privilege by acting inconsistently with maintenance of privilege |
| Link to announcement: Cooper v Hobbs [2013] NSWCA 70 (9 April 2013) |
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| 3/04/2013 3:58 PM | | |
CONTRACT – breach – damage – causation – substitution of one epoxy resin for another in epoxy-phenolic resin – resin used to make lacquer to seal insides of ends of cans – corrosion of can ends by contact between contents and can ends – whether substitution caused corrosion – whether lower molecular weight of substitute epoxy resin caused reduced flexibility of lacquer – whether lacquer less able to withstand scoring process – whether more than plausible theory – whether substitution established on balance of probabilities to be cause
INSURANCE – policy – indemnity in respect of claim for property damage resulting from occurrence – obligation to defend in insured’s name and on insured’s behalf any proceeding – whether insurer obliged to defend claim for loss resulting from corrosion of can ends, alleged to have been caused by substitution of one epoxy resin for another in epoxy-resin supplied for purpose of making lacquer to seal can ends
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| Link to announcement: Visy Packaging Pty Ltd v Siegwerk Australia Pty Ltd [2013] FCA 231 (19 March 2013) |
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| 3/04/2013 3:57 PM | | |
INSURANCE - contract - interpretation - Total and Permanent Disablement - Regular Remuneration Work- whether respondent reasonably fitted by education, training or experience to carry out work
INSURANCE - contract - interpretation - Total and Permanent Disablement - Regular Remuneration Work- whether part-time employment constituted Regular Remuneration Work |
| Link to announcement: Hannover Life Re of Australasia Ltd v Dargan [2013] NSWCA 57 (20 March 2013) |
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| 3/04/2013 3:56 PM | | |
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| Link to announcement: Update Pty Ltd v Commissioner of State Revenue [2013] VSC 122 (21 March 2013) |
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| 3/04/2013 3:55 PM | | |
INTELLECTUAL PROPERTY – Patents – Construction of claims – Infringement of claims – Applicable principles – Skilled addressee – Revocation for invalidity – Novelty – Generic chemical disclosure – Prior art and common general knowledge – Selection patents – Inventive step – Secondary considerations – Commercial success – Sufficiency – Fair basis – Lack of clarity – Manner of new manufacture |
| Link to announcement: Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214 (15 March 2013) |
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| 3/04/2013 3:19 PM | | |
PRACTICE AND PROCEDURE – Trial by jury or by judge alone – Whether jury should determine both liability and quantum – Application of provisions of the Civil Liability Act 2002 (NSW) requires judicial determination - Judge and jury to determine liability and judge alone to determine quantum. |
| Link to announcement: Halligan & Ors v Curtin & Anor [2013] VSC 124 (22 March 2013) |
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| 3/04/2013 3:15 PM | | |
UNCONSCIONABLE CONDUCT – Mortgage originator acting as agent for lender – Fraudster supplying false application and income declaration for borrower to finance broker who submitted documents to mortgage originator and fund manager – Borrower not consciously responsible for inclusion of false information – Application and declaration contained different income figures for borrower and did not include ABN – Mortgage originator asked for ABN and stated that income figures in forms needed to be the same – Application and declaration re-submitted with reduced income figure below threshold requiring ABN – No direct contact between borrower and finance broker, mortgage originator, fund manager or lender – Employee of mortgage originator who processed application available but not called – Conduct of mortgage originator unconscionable – Orders against lender and mortgage originator accordingly – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1); Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29 considered.
FINANCIAL SERVICES – Supply of financial services to a consumer – Loan of type used for personal investment - Services of a kind ordinarily acquired for personal, domestic or household use – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(5). |
| Link to announcement: Violet Homes Loans Pty Ltd v Schmidt & Anor [2013] VSCA 56 (25 March 2013) |
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| 3/04/2013 3:13 PM | | |
CONTRACT – Agreement by family members to borrow money secured by mortgage over property – Responsibility as between family members for repayment of loan – Property sold – Payments made from net proceeds of sale – Balance of proceeds paid into Court – Entitlement of various parties to funds in Court.
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| Link to announcement: Fato v Fato & Anor [2013] VSC 125 (26 March 2013) |
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| 3/04/2013 3:10 PM | | |
UNCONSCIONABLE CONDUCT – Mortgage originator acting as agent for lender – Fraudster supplying false application and income declaration for borrower to finance broker who submitted documents to mortgage originator and fund manager – Borrower not consciously responsible for inclusion of false information – Application and declaration contained different income figures for borrower and did not include ABN – Mortgage originator asked for ABN and stated that income figures in forms needed to be the same – Application and declaration re-submitted with reduced income figure below threshold requiring ABN – No direct contact between borrower and finance broker, mortgage originator, fund manager or lender – Employee of mortgage originator who processed application available but not called – Conduct of mortgage originator unconscionable – Orders against lender and mortgage originator accordingly – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1); Tonto Home Loans Australia Pty Ltd v Tavares (2011) 15 BPR 29 considered.
FINANCIAL SERVICES – Supply of financial services to a consumer – Loan of type used for personal investment - Services of a kind ordinarily acquired for personal, domestic or household use – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(5). |
| Link to announcement: Violet Homes Loans Pty Ltd v Schmidt & Anor [2013] VSCA 56 (25 March 2013) |
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| 3/04/2013 3:09 PM | | |
GROSS COSTS APPLICATION - Rule 63.07(2)(c) Supreme Court (General Civil Procedure) Rules 2005 |
| Link to announcement: ACN 074 971 109 (as trustee for the Argo Unit Trust) & Anor v National Mutual Life Association of Australasia Limited [2013] VSC 137 (26 March 2013) |
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| 3/04/2013 3:05 PM | | |
ARBITRATION – whether arbitration agreement – dispute resolution clause – interpretation – application for stay of proceeding – misleading and deceptive conduct – s 52 Trade Practices Act 1974 (Cth) – breach of contract – proposed proceeding stayed
PRACTICE AND PROCEDURE – application for preliminary discovery – application stayed without an adjudication of the merits – inappropriate to determine |
| Link to announcement: Amcor Packaging (Australia) Pty Ltd v Baulderstone Pty Ltd [2013] FCA 253 (27 March 2013) |
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| 3/04/2013 3:04 PM | | |
CONTRACT – Sale of business – Construction – Valuation of stock. |
| Link to announcement: DNFS Pty Ltd v De Neefe Signs Pty Ltd [2013] VSC 88 (20 March 2013) |
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| 3/04/2013 3:01 PM | | |
ADMINISTRATIVE LAW – Judicial review – Error of law – Whether a company director and registered building practitioner has a duty to ensure building works conducted by a fellow director and registered building practitioner comply with requisite standards and are not defective – Whether breach of Building Regulations 2006 (Vic) reg 1502 requires inquiry into the specific conduct of the registered building practitioner beyond their being a company director - Denial of natural justice – Whether “to take steps to ensure” materially differs from “to ensure” – Whether the Board is required to provide evidence of incurrence or reasonableness of costs in the conduct of an inquiry – Whether the Board failed to provide adequate reasons for its decision – Whether the application for relief was out of time - Building Act 1993 (Vic) ss 16, 176(4), 178, 179 – Administrative Law Act 1978 (Vic). |
| Link to announcement: Noce v The Building Practitioners Board [2013] VSC 138 (3 April 2013) |
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| 14/03/2013 1:34 PM | | |
CONTRACTS: General contractual principles – construction and interpretation of contracts – implied terms – whether implied term existed in joint venture agreement giving the right to a party to inspect records of the other party
CONTRACTS: Particular parties – principal and agent – creation of relationship of agency – formation and proof of agency – agency created by other means – implication of agency from particular circumstances
PARTNERSHIP: Joint venture agreement – whether agreement gave rise to a proprietary right to one party to inspect the records of other partner – agreement defining rights of parties – absence of agency – no right of one party to inspect records of other party
PRACTICE AND PROCEDURE: Appeal – evidence – receipt of further evidence – tender of further evidence in submissions in reply rejected – evidence rejected in circumstances where no notification given of proposal to seek leave to rely upon such evidence
PRACTICE AND PROCEDURE: Discovery and inspection – preliminary discovery – access to documents of one partner to a joint venture agreement by the other partner
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| Link to announcement: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29 (12 March 2013) |
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| 14/03/2013 1:28 PM | | |
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS
LANDLORD AND TENANT - AGREEMENTS FOR LEASE - GENERALLY
DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES
LANDLORD AND TENANT - TERMINATION OF THE TENANCY - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - PARTICULAR CASES
EQUITY - EQUITABLE REMEDIES - SPECIFIC PERFORMANCE |
| Link to announcement: GEMBANE PTY LTD & ANOR v DAHER; DAHER v GEMBANE PTY LTD & ANOR [2013] SASCFC 9 (6 March 2013) |
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| 14/03/2013 1:27 PM | | |
ESTOPPEL - proprietary estoppel - father's promises to give property to son - whether son changed his position in reliance on promises |
| Link to announcement: Duic v Duic [2013] NSWCA 42 (1 March 2013) |
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| 14/03/2013 1:23 PM | | |
PRACTICE AND PROCEDURE – Notice to produce legal advice – Claim for legal professional privilege – Whether implied waiver of privilege.
PRACTICE AND PROCEDURE – Discovery – Whether documents are relevant to issues in the proceeding.
PRACTICE AND PROCEDURE – Subpoena – Whether documents are relevant to issues in the proceeding. |
| Link to announcement: Myer Pty Ltd v Ellery Land Pty Ltd & Anor [2013] VSC 108 (13 March 2013) |
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| 12/03/2013 9:02 AM | | |
PATENTS – infringement – standard patent and innovation patent – where claimed invention provides an electronic gaming apparatus having novel features for enhancing gameplay interest – where claimed invention has components for monitoring gameplay and the occurrence of a game event – where claimed invention has an event guarantee component for guaranteeing that a game event will trigger within a set amount of gameplay, including a trigger component and an indicator component – where indicator component is for indicating the amount of gameplay remaining before a guaranteed game event will trigger – construction of the patent claims – cross-claim for invalidity
PATENTS – s 18(1)(a) of the Patents Act 1990 (Cth) – whether claimed invention is a manner of manufacture within the meaning of s 6 of the Statute of Monopolies
PATENTS – validity – requirement of novelty – whether claims not novel when compared with prior art base
PATENTS – validity – requirement of inventive step for standard patent – requirement of innovative step for innovation patent – whether patents involved inventive and innovative steps respectively
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| Link to announcement: Dynamite Games Pty Limited v Aruze Gaming Australia Pty Limited [2013] FCA 163 (4 March 2013) |
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| 12/03/2013 9:01 AM | | |
CORPORATIONS – Application by liquidators to determine questions in the winding up – Question as to whether or not certain moneys held by an online betting company (in liquidation) were held on trust for betting clients – Questions determined that the moneys were not held on trust – Corporations Act 2001, s 511. |
| Link to announcement: Re Sports Alive Pty Ltd (in liquidation) [2013] VSC 69 (4 March 2013) |
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| 12/03/2013 8:59 AM | | |
PATENTS – pharmaceutical patents – invalidity – priority date – novelty – inventive step – entitlement – fair basis – utility – secret use – manner of manufacture – false suggestion – infringement – authorisation |
| Link to announcement: Apotex Pty Ltd v AstraZeneca AB (No 4) (includes Corrigendum dated 8 March 2013) [2013] FCA 162 (5 March 2013) |
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| 12/03/2013 8:56 AM | | |
PATENTS – s 117(2)(b) of the Patents Act 1990 (Cth) – whether supplier of product, which was not a staple commercial product, had reason to believe that the person to whom product supplied would put the product to an infringing use
PATENTS – appeal against interlocutory injunction – threatened supply of generic pharmaceutical products – whether prima facie case of infringement – whether prima facie case in a Beecham sense – whether assessment or evaluation of strength of prima facie case required – whether balance of convenience and justice favours the grant of interlocutory injunctive relief
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| Link to announcement: Generic Health Pty Ltd v Otsuka Pharmaceutical Co., Ltd [2013] FCAFC 17 (6 March 2013) |
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| 12/03/2013 8:55 AM | | |
PRACTICE AND PROCEDURE – Freezing order – Application for variation to pay funds held in a specified account in reduction of a pre-existing debt - Whether proposed variation in the interests of justice – Freezing order to be administered subject to the interests of justice and consistently with the purposes for which it was originally made – Application for the variation dismissed on the ground that it would not be interests of justice. |
| Link to announcement: Break Fast Investments Pty Ltd v Gravity Ventures Pty Ltd [2013] VSC 89 (27 February 2013) |
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| 12/03/2013 8:54 AM | | |
PATENTS – revocation of claims of standard patent by Commissioner pursuant to s 101(1) of the Patents Act 1990 (Cth) ( the Act) following re-examination pursuant to s 97(2) of the Act – whether claims should be revoked pursuant to s 97(2) of the Act on ground that they lacked an inventive step – appeal against Commissioner’s decision to revoke – hearing de novo – whether evidence justified finding that claims revoked by Commissioner were invalid – evidence does not justify any such finding – decision of Commissioner under s 101(1) of the Act set aside – observations concerning standard of proof in context of re-examination – whether invalidity must be “clearly shown” or “practically certain” |
| Link to announcement: Delnorth Pty Ltd v Commissioner of Patents [2013] FCA 165 (6 March 2013) |
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| 12/03/2013 8:53 AM | | |
Contracts - Construction of a loan agreement - Proper construction of clause prohibiting setoff or counterclaim - Turns on own facts |
| Link to announcement: OSWAL -v- COMMONWEALTH BANK OF AUSTRALIA [2013] WASCA 58 (6 March 2013) |
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| 12/03/2013 8:51 AM | | |
LEGAL PRACTITIONERS – Professional duties – Application for order restraining continued retainer of solicitors by party opposed to former client – Whether proceeding involves the same or a closely related matter as matters about which the solicitors had previously been retained – Whether Court should exercise its inherent jurisdiction to restrain continued retainer to protect due administration of justice – Fair-minded, reasonably informed member of the public would find it unnecessary for Court to intervene – Application refused. |
| Link to announcement: Harris v Stiefel Research Australia Pty Ltd [2013] VSC 90 (6 March 2013) |
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| 12/03/2013 8:50 AM | | |
PRACTICE AND PROCEDURE – Service out of jurisdiction – Application to set aside service – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 7.05 – Appeal from decision of Associate Justice – Rehearing de novo on the merits – Whether a plaintiff must show a strongly arguable case that jurisdictional facts supporting service out of Australia exist – Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552 considered and distinguished – Williams v The Society of Lloyd’s [1994] VicRp 19; (1994) 1 VR 274 applied – Appeal dismissed.
COSTS – Appeal from costs order on interlocutory application – Appeal from decision of Associate Justice – Leave required – Supreme Court Act 1986 (Vic), s 17A – Supreme Court (Associate Judges Appeals Amendment) Rules 2012 (Vic) – Requirement to demonstrate legal error – Whether Associate Justice erred in exercising discretion to award costs – Appeal dismissed. |
| Link to announcement: Castel Electronics Pty Ltd v TCL Airconditioner (Zhongshan) Co Ltd [2013] VSC 92 (7 March 2013) |
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| 12/03/2013 8:48 AM | | |
CONTRACTS — Employment contract — Terms and conditions — Construction of equity participation clause — Principles of construction — Effect of drafting changes — Surrounding circumstances — Clause did not entitle appellant to receive 5% of issued capital at end of 12 month period — Appeal dismissed
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| Link to announcement: Pepe v Platypus Asset Management Pty Ltd [2013] VSCA 38 (6 March 2013) |
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| 12/03/2013 8:44 AM | | |
BEADCRETE PTY LTD (ACN 071 743 961), DESIGNER CONCRETE COATINGS PTY LTD (ACN 102 760 234), BUYRITE STEEL SUPPLIES PTY LTD (ACN 053 173 041) and DESIGNERITE PTY LTD (ACN 146 670 706) v FEI YU TRADING AS JEWELS 4 POOLS, JEFFREY STUART MCALISTER, PEBBLE MASTERS PTY LTD (ACN 087 540 734), TWIN COAST POOLS PTY LTD (ACN 104 149 484), MELKEN DEVELOPMENTS PTY LTD TRADING AS BAYSIDE POOLS & PAVING (ACN 052 945 169) and GRIN DISTRIBUTIONS PTY LTD (ACN 133 541 563) |
| Link to announcement: Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools (No 2) [2013] FCA 187 (8 March 2013) |
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| 12/03/2013 8:42 AM | | |
RESTITUTION - in case of payment made under mistake - change of position defence - receipt by one bank from another and subsequent disbursement by recipient bank - each bank acted without negligence on an instruction subsequently shown to be fraudulent - whether recipient bank acted on the faith of the receipt in making subsequent payment - change of position defence established by recipient bank - basis for and significance of the decision in State Bank of New South Wales Ltd v Swiss Bank Corporation (1995) 39 NSWLR 350 discussed, explained and not followed in one respect - alternative defence of payment over - whether conditions for that defence satisfied - alternative defence of estoppel - whether conditions for that defence satisfied |
| Link to announcement: Citigroup Pty Limited v National Australia Bank Limited [2012] NSWCA 381 (4 December 2012 |
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| 26/02/2013 3:23 PM | | |
CONSUMER AND COMPETITION LAW – Misleading or deceptive conduct, introductory comments, representations to be considered in context. CONSUMER AND COMPETITION LAW – Franchising Code of Conduct (“Code”) – deficient disclosure document.
CONTRACT – Breach – damages.
WORDS AND PHRASES – “Franchise agreement”, “franchise business”. |
| Link to announcement: Dorrian & Anor v Rushlyn Pty Ltd & Anor [2013] FMCA 101 (21 February 2013) |
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| 22/02/2013 10:02 AM | | |
TAXES AND DUTIES – Debt recovery action under s 40(1) of the Stamps Act 1958 (Vic) – Whether monies were received by the defendants as or for duty upon or in respect of any instrument - Whether defendants neglected or omitted to remit monies received as or for duty – Whether defendants improperly withheld or detained duty – Stamps Act 1958 (Vic) |
| Link to announcement: Commissioner of State Revenue v Aidlaw Pty Ltd (No. 5) [2013] VSC 32 (12 February 2013) |
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| 22/02/2013 9:49 AM | | |
PRACTICE AND PROCEDURE – Class action – Dissemination of evidence adduced at trial – Whether to broadcast evidence at trial via internet live streaming – Large number of group members – Evidence available to group members and families for streaming – Principle of open justice. |
| Link to announcement: Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 14) [2013] VSC 37 (15 February 2013) |
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| 22/02/2013 9:46 AM | | |
COSTS – Exercise of discretion as to costs in a complex and unusual case – Orthodox approach “costs follow the event” not applied – Successful defendants guilty of misconduct in the transactions complained of – Departure from settled practice – Conduct involving serious breach of duty to an employer - Conduct creating a misleading documentary record – Wrongful conduct in backdating documents – Trial prolongated to some extent in dealing with the issue – Successful defendants’ costs order reduced to 10 per cent in one case and 75 per cent in the other, payable on a party/party basis – Apportionment of costs by issue. |
| Link to announcement: Amcor Ltd & Ors v Barnes & Ors (No. 5) [2013] VSC 51 (15 February 2013) |
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| 22/02/2013 9:45 AM | | |
COMMERCIAL ARBITRATION – Application for leave to appeal against arbitrators’ interim award – Whether or not manifest error of law on the face of the award or strong evidence that arbitrators made error of law – Construction of contractual terms – No manifest error – Application dismissed – Commercial Arbitration Act 1984, s 38. |
| Link to announcement: BASF Coatings Aust Pty Ltd v Akzo Nobel Pty Ltd [2013] VSC 31 (18 February 2013) |
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| 22/02/2013 9:42 AM | | |
INTELLECTUAL PROPERTY – application for joinder – application for service outside jurisdiction – whether prima facie case established – discretionary considerations |
| Link to announcement: GE BetzDearborn Canada Company v Memcor Australia Pty Ltd [2013] FCA 78 (7 February 2013) |
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| 22/02/2013 9:40 AM | | |
COPYRIGHT – Infringement of applicants copyright – infringement of applicants trade mark. |
| Link to announcement: Facton Ltd & Ors v Xu & Ors [2013] FMCA 90 (14 February 2013) |
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| 22/02/2013 9:37 AM | | |
HUMAN RIGHTS – discrimination – allegations of sexual harassment – repeated inappropriate remarks and invitations – vicarious liability – whether employer took all reasonable steps to prevent sexual harassment
HUMAN RIGHTS – discrimination – indirect discrimination on the ground of sex – whether employee required to make a formal complaint
HUMAN RIGHTS – victimisation – whether employee demoted or subjected to a detriment after making complaint of sexual harassment
CONTRACTS – employment contract – whether employer repudiated contract – whether employee demoted
DAMAGES – general damages relating to sexual harassment – expert opinion discounted in light of findings of fact – damages awarded for psychological injury – economic loss not established |
| Link to announcement: Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102 (20 February 2013) |
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| 22/02/2013 9:35 AM | | |
CONTRACT — Restraint of trade — Employer and Employee — Employer a consulting firm and the employee an IT consultant — Legitimate interest — Reasonableness of restraint — Duration — Scope — Severance — Clause unreasonable and void.
APPEAL — Ground of appeal contained an argument expressly not run at trial —Whether argument not run at trial permitted to be run on appeal — Interests of justice — University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd [2012] WASCA 165; Banque Commerciale SA En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 applied.
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| Link to announcement: Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24 (20 February 2013) |
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| 18/02/2013 10:34 AM | | |
COPYRIGHT – Infringement of copyright in sound recordings – proceedings commenced by collection society – where no appearance by respondents – where application for summary judgment – where damages claimed for loss of licence fees – where additional damages sought – consideration of factors under s.115(4) Copyright Act 1968 – assessment of damages – fixed costs assessed. |
| Link to announcement: Phonographic Performance Company of Australia Ltd & Ors v The Martini lounge & Nightclub Pty Ltd & Ors [2013] FMCA 67 (29 January 2013) |
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| 18/02/2013 10:33 AM | | |
PATENTS – s 18(1)(a) of the Patents Act 1990 (Cth) – whether claimed invention is a manner of manufacture within the meaning of s 6 of the Statute of Monopolies – where claimed invention provides a method to create a securities index by means of a computer – appeal from decision of Commissioner of Patents refusing the patent applications for want of manner of manufacture
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| Link to announcement: Research Affiliates LLC v Commissioner of Patents [2013] FCA 71 (13 February 2013) |
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| 18/02/2013 10:31 AM | | |
INTELLECTUAL PROPERTY – patents – extension of term – extension of time – whether there was an error or omission – whether the discretion should be exercised – decision under review affirmed
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| Link to announcement: Merck Sharp & Dohme Corp and Commissioner of Patents [2013] AATA 71 (15 February 2013) |
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| 18/02/2013 10:30 AM | | |
PATENTS – Patent including claims for isolated DNA and RNA (nucleic acid) – whether claims to composition comprising naturally occurring DNA and RNA that has been isolated are for a manner of manufacture for purposes of s 18(1)(a) of Patents Act 1990 (Cth) – where isolated DNA and RNA has been extracted from cells removed from human body and purged of other biological material with which it is associated in the cell – whether isolation of naturally occurring DNA and RNA results in an artificial state of affairs with a discernible effect – whether claims to isolated DNA and RNA are to a “mere discovery” and therefore not patentable – whether claims to isolated DNA and RNA are to a “product of nature” and therefore not patentable – whether order revoking challenged claims should be made
Held: each of challenged claims is to a manner of manufacture – requirements of s 18(1)(a) of Patents Act 1990 (Cth) satisfied – where non-compliance with requirements of s 18(1)(a) sole ground relied upon in support of application for orders revoking challenged claims – application dismissed with costs.
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| Link to announcement: Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 (15 February 2013) |
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| 18/02/2013 10:28 AM | | |
JUDGMENTS AND ORDERS – Form of order – Breach of contract – Infringement of plaintiff’s naming rights over building – External sign inconsistent with plaintiff’s rights – Extent of appropriate remedy – Plaintiff entitled to removal of current sign but not prescriptive order as to replacement sign – Inappropriate to grant liberty to apply.
COSTS – Neither party wholly successful – Appellant failing on several claims and issues – Parties to bear their own costs of the trial – Respondent to pay 50% of the appellant’s costs of appeal. |
| Link to announcement: Horesh v Sephardi Association of Victoria & Ors (No. 2) [2013] VSCA 15 (14 February 2013) |
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| 7/02/2013 11:09 AM | | |
JOINT VENTURE AGREEMENT – Fiduciary duties – Breach of fiduciary duties – Whether parties knowingly assisted or participated in breach of fiduciary duties or knowingly received benefit. Barnes and Addy (1874) CR 9 CL, App 244.
EQUITABLE REMEDIES – Moulding the remedy – Equitable proprietary interest in property – Equitable compensation.
COSTS – Plaintiff succeeds in establishing an interest in property but to a lesser extent than pleaded – Additional costs de minimis – Plaintiff entitled to costs. |
| Link to announcement: Windemac Pte Ltd v Jada Ex Beverages Pty Ltd & Ors [2013] VSC 1 (25 January 2013) |
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| 7/02/2013 11:08 AM | | |
TAXATION – Debt recovery – summary judgment – summary judgment refused in respect of amounts not the subject of a conclusive notice of assessment |
| Link to announcement: Deputy Commission of Taxation v De Simone [2012] VSC 644 (21 December 2012) |
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| 7/02/2013 11:04 AM | | |
Contract - Carriage of drill rig - Drill rig damaged in transit - Exclusion clause endorsed on back of invoices - Whether exclusion clause incorporated into contract by prior course of dealings - Whether knowledge of term may be actual or constructive - Meaning of 'contractual document' - Whether document containing the term must be sent or given prior to, or at the time of, formation of each of the contracts (or one or more of them) constituting the prior course of dealings - Whether the term must be incorporated in at least one of the contracts constituting the prior course of dealings
Whether reasonably open on the evidence for trial judge to find appellant breached his contractual and tortious duties to exercise reasonable care - Whether appellant failed to discharge onus of disproving negligence in bailment - Turns on own facts |
| Link to announcement: LA ROSA -v- NUDRILL PTY LTD [2013] WASCA 18 (1 February 2013) |
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| 7/02/2013 11:03 AM | | |
EQUITY - fiduciary duty - fact-based fiduciary duty - where plaintiff granted to defendant a licence to exploit technology - finding of breach of contract through exploitation contrary to licence agreement - concurrent finding of existence and breach of fiduciary duty of defendant licensee by reason of same acts - no recognised fiduciary relationship - whether the circumstances gave rise to the fiduciary duty alleged - EQUITY - equitable obligation of confidence - licence agreement imposed confidentiality restraints with respect to information - finding of existence and breach of concurrent equitable duty of confidence - question whether equitable duty may co-exist with contractual duty not in contest - whether information said to be protected by equitable duty sufficiently identified - whether confidential quality sufficiently shown - course of trial such as to prevent adequate inquiry into those questions - need for new trial - TRADE AND COMMERCE - misleading or deceptive conduct - representation as to future matter - whether representation contrary to statute - whether order varying contract affected by such representation properly made |
| Link to announcement: Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 (1 February 2013) |
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| 7/02/2013 11:02 AM | | |
AGENCY – whether a corporation which facilitated the making of a contract for telecommunications services and which supplied various items of office equipment acted in relation to those transactions as the agent of the credit providers which provided credit to the end consumer which acquired those services and that equipment by way of lease finance
CONSUMER LAW – whether corporations which provided credit by way of lease finance to an end consumer in respect of the acquisition of goods and services by that consumer are liable pursuant to s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) for the misleading and deceptive conduct engaged in by an employee of the corporation which facilitated the supply of the particular services and which supplied the particular goods – whether a corporation which provided credit by way of lease finance to an end consumer of goods and services in the period 2007–2010 was a linked credit provider within the meaning of s 73 of the Trade Practices Act 1974 (Cth) – whether the provision of lease finance was, in the period 2007–1010, a financial service within the meaning of s 51AF(1) of the Trade Practices Act – whether, having regard to the terms of s 51AF(1) of the Trade Practices Act, s 73(1) of that Act could be engaged at all in relation to the supply or acquisition of a financial service within the meaning of s 51AF(1)
TRADE AND COMMERCE – whether corporations which provided credit by way of lease finance to an end consumer in respect of the acquisition of goods and services by that consumer are liable pursuant to s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) for the misleading and deceptive conduct engaged in by an employee of the corporation which facilitated the supply of the particular services and which supplied the particular goods – whether a corporation which provided credit by way of lease finance to an end consumer of goods and services in the period 2007–2010 was a linked credit provider within the meaning of s 73 of the Trade Practices Act 1974 (Cth) – whether the provision of lease finance was, in the period 2007–1010, a financial service within the meaning of s 51AF(1) of the Trade Practices Act – whether, having regard to the terms of s 51AF(1) of the Trade Practices Act, s 73(1) of that Act could be engaged at all in relation to the supply or acquisition of a financial service within the meaning of s 51AF(1) |
| Link to announcement: Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited (In Liq) [2013] FCAFC 5 (31 January 2013) |
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| 7/02/2013 11:00 AM | | |
Interlocutory injunction – Costs – Application Dismissed – Whether indemnity costs should be ordered – Applicant unsuccessful in main proceedings
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| Link to announcement: Perpetual Nominees Limited v Rytelle Pty Ltd & Ors (No. 3) [2013] VSC 8 (5 February 2013) |
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| 7/02/2013 10:57 AM | | |
CONTRACT – Loan – Guarantee and indemnity – Borrower failed to repay amount owing by due date – Counterclaim by borrower and guarantors for breach of contract by lender.
CONTRACT – Whether lender obliged to advance funds if request for drawdown not in proper form – Whether drawdown notice substantially in the form agreed.
CONTRACT – Loan – Whether lender obliged to advance funds if unremedied events of default exist at time of drawdown notice.
CONTRACT – Loan – Breach – Whether failure to remit GST constituted event of default.
CONTRACT – Loan – Breach – Whether agreement to permit borrower to retain GST refunds – Whether conduct of lender amounted to waiver or election to permit borrower to retain GST refunds.
CONTRACT – Loan – GST refunds – Whether part of refunds held on trust for lender – Whether borrower in breach of trust – Whether lender provided informal consent or ratification of breach.
CONTRACT – Loan – Breach – Whether pre-sales hurdle met – Construction of term relating to relevant pre-sales hurdle – Whether agreement to vary relevant pre-sales hurdle term.
CONTRACT – Loan – Causation – Whether any loss caused if lender in breach by failing to advance funds.
CONTRACT – Loan – Penalty - Higher interest rate imposed when repayments late – Whether higher rate was genuine pre-estimate of loss – Higher rate not extravagant and consistent with market rates.
MISLEADING OR DECEPTIVE CONDUCT – Whether lender misled borrower by stating that all funds due under loan would be advanced – Whether borrower had knowledge of lender’s financial position – Whether borrower relied on lender’s representation – Whether borrower suffered any loss. |
| Link to announcement: Perpetual Nominees Limited v Rytelle Pty Ltd & Ors (No. 4) [2013] VSC 9 (5 February 2013) |
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| 7/02/2013 10:55 AM | | |
INTELLECTUAL PROPERTY – Patents – Validity – Requirement of clarity in terms of claims – Difficult issues in construction of claims – Issues resolved by adjudication – Whether claims “clear and succinct”.
INTELLECTUAL PROPERTY – Patents – Validity – Requirement of novelty – Whether claims not novel when compared with prior art base – Whether prior art base disclosed claimed process in terms that would be so understood by skilled addressee – Whether prior art base anticipated claims by inevitable outcome – Significance of concessions made by patentee at trial – Whether necessary for skilled addressee, at priority date, to have been practically able to obtain materials necessary to work a process that would anticipate claims by inevitable outcome – Whether claim may be anticipated in part by inevitability of outcome and in part by understanding of skilled addressee.
INTELLECTUAL PROPERTY – Patents – Validity – Whether invention a manner of manufacture – Requirement that it appear on the face of the specification that the invention is not new
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| Link to announcement: Novozymes A/S v Danisco A/S [2013] FCAFC 6 (4 February 2013) |
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| 7/02/2013 10:54 AM | | |
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where first respondent hired mining equipment to the appellant – where payment claim made under the Building and Construction Industry Payments Act 2004 (Qld) (“the Act”) – where adjudicator determined the appellant should make a progress payment to the respondent – where subcontract required appellant to perform clear and grub works, topsoil stripping and placement at site – where work performed was excavation and removal of timber and topsoil from site – whether work carried out under subcontract was “construction work” – whether work carried out fell within the exclusion under s 10(3)(b) of the Act – whether adjudication determination was outside jurisdiction – whether rental agreement between appellant and first respondent was a “construction contract” – whether rental agreement is contract where equipment was supplied for use “in connection with” carrying out construction work |
| Link to announcement: HM Hire Pty Ltd v National Plant and Equipment Pty Ltd & Anor [2013] QCA 6 (5 February 2013) |
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| 24/01/2013 11:30 AM | | |
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| Link to announcement: Bayer Pharma Aktiengesellschaft v Generic Health Pty Ltd [2012] FCA 1510 (14 December 2012) |
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| 13/12/2012 4:50 PM | | |
Significant amendments to the Rules of Court will commence on 1 January 2013 in relation to appeals from judgments and orders of Associate Judges. The amendments are contained in the Supreme Court (Associate Judges Appeals Amendment) Rules 2012. |
| Link to announcement: Changes to Appeals from Judgments and Orders of Associate Judges |
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| 12/12/2012 4:29 PM | | |
DEBTS AND CHOSES IN ACTION ― Equitable assignments ― Loan agreement ― Loan to enable participation in managed investment scheme ― First assignment by deed ― Second assignment not by deed ― Third assignment by sale and purchase procedure ― Related corporations ― Evidence of transfer of debt by book entries ― Sufficient evidence of intention to establish equitable assignment |
| Link to announcement: ABL Nominees Pty Ltd (in its capacity as Trustee of the Lighthouse Warehouse Trust No 8 Environinvest Finance) & Ors v Brakatselos [2012] VSC 594 (10 December 2012) |
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| 12/12/2012 4:17 PM | | |
DEBTS AND CHOSES IN ACTION ― Equitable assignments ― Loan agreement ― Loan to enable participation in managed investment scheme ― First assignment by deed ― Second assignment not by deed ― Related corporations ― Evidence of transfer of debt by book entries ― Sufficient evidence of intention to establish equitable assignment. |
| Link to announcement: Primary Yield Finance Pty Ltd (in liq) (recs & mgrs apptd) & Ors v Meyer [2012] VSC 595 (10 December 2012) |
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| 12/12/2012 4:16 PM | | |
PRACTICE AND PROCEDURE – Stay of proceedings – Abuse of process – Similar proceeding in the same Court. |
| Link to announcement: Williams & Ors v State of Victoria & Anor [2012] VSC 585 (3 December 2012) |
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| 12/12/2012 4:13 PM | | |
SUMMARY JUDGMENT – Limitations of Actions defence – Trial judge granted defendant summary judgment – Proceeding dismissed – Leave to appeal granted and appeal allowed - Wardley Australia Ltd & Anor v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 applied.
FRESH EVIDENCE – Appeal from summary judgment – Whether fresh evidence should be allowed - Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553 applied. |
| Link to announcement: Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303 (12 December 2012) |
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| 12/12/2012 4:10 PM | | |
PRACTICE AND PROCEDURE – Represented parties – Approval of compromise – Whether for the benefit of the absent persons - Supreme Court (General Civil Procedure) Rules 2005 r 16.01.
PRACTICE AND PROCEDURE – Costs – Circumstances supporting indemnification of representative parties appointed pursuant to Supreme Court (General Civil Procedure) Rules 2005 r 16.01 from property subject to trust – Entry into litigation funding agreement – Premium of 25% - Representative parties acting in good faith – Proper party to bring application for indemnification. |
| Link to announcement: In re Timbercorp Securities Ltd (Applications for the approval of compromises) [2012] VSC 590 (12 December 2012) |
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| 12/12/2012 4:08 PM | | |
ESTOPPEL – Equitable estoppel – Precontractual representation that the bank would provide ‘financial support for the long term’ and would be flexible in dealings with the customers’ needs – Customer and security providers could not reasonably have interpreted statements by the bank to mean that the bank would not be entitled to enforce facility limits and default powers.
BANKER AND CUSTOMER – Precontractual representation that the bank would provide ‘financial support for the long term’ and would be flexible in dealings with the customers’ needs – The bank’s reliance on its facility limit and default powers was not unconscionable. |
| Link to announcement: Commonwealth Bank of Australia Ltd & Ors v Marsden [2012] VSC 607 (11 December 2012) |
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| 10/12/2012 1:32 PM | | |
INTELLECTUAL PROPERTY – patents – extension of term – extension of time application – decision under review affirmed
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| Link to announcement: Aspen Pharma Pty Ltd and Ors and Commissioner of Patents and H Lundbeck (Joined Party) [2012] AATA 851 (4 December 2012) |
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