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| 30/07/2010 12:19 PM | | |
EMPLOYMENT LAW – Variation of nominal expiry date in Australian Workplace Agreement – Election to vary made after repeal of Workplace Relations Act 1996 (Cth) – Variation not permitted under Workplace Relations Act 1996 (Cth), Fair Work Act 2009 (Cth) or Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) –Availability of common law rights – Whether agreement to vary constitutes a variation of the agreement.
CONSTITUTIONAL LAW – s 51(xxxi) Australian Constitution – Loss of contractual entitlement – Schedule 3 Item 9 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) – Law not one with respect to acquisition of property.
CONTRACT – Frustration – Benefit and performance – “Because of” – s 32ZI Fair Trading Act 1999 (Vic). |
| Link to announcement: John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [2010] VSC 322 |
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| 29/07/2010 2:21 PM | | |
ASIC has today released regulatory guidance to assist directors to understand and comply with their duty under the Corporations Act 2001 (Corporations Act) to prevent insolvent trading.
‘ASIC first contemplated issuing guidance during the downturn in economic conditions when a rise in corporate insolvencies was expected. We thought that the market, including directors and their professional advisers, would benefit from clarification about the factors we consider when deciding to commence an investigation in relation to possible insolvent trading, and issued some proposals in November last year’, ASIC Commissioner, Michael Dwyer said.
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| Link to announcement: 10-164AD ASIC releases guidance on a director’s duty to prevent insolvent trading |
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| 29/07/2010 2:20 PM | | |
ASIC has today announced the making of a new class order, [CO 10/654], to allow companies, registered schemes and disclosing entities that present consolidated financial statements to also present parent entity financial statements. |
| Link to announcement: 10-165AD ASIC provides relief for parent entity financial statements |
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| 29/07/2010 2:19 PM | | |
ASIC today announced the establishment of its Markets Disciplinary Panel and the initial membership. This confirms ASIC’s readiness to assume responsibility for the supervision of real-time trading on Australia's domestic licensed financial markets on 1 August 2010
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| Link to announcement: 10-166AD ASIC establishes Markets Disciplinary Panel |
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| 29/07/2010 2:18 PM | | |
The Chairman of ASIC, Mr Tony D’Aloisio, today confirmed the appointment of Dr Pamela Hanrahan as Regional Commissioner for Queensland.
‘ASIC’s regional commissioners play a vital role in ensuring ASIC understands developments and issues in their region and in engaging with ASIC’s external stakeholders and the State and Territory governments.Pamela’s appointment in Queensland continues the tradition of appointing someone to the role with outstanding credentials. It underlines ASIC’s strong commitment to its regional role and focus’, Mr D’Aloisio said |
| Link to announcement: 10-167MR Dr Pamela Hanrahan appointed Regional Commissioner for Queensland |
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| 29/07/2010 2:17 PM | | |
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| Link to announcement: Director of Public Transport v XFJ [2010] VSC 319 |
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| 29/07/2010 10:09 AM | | |
PROMISSORY ESTOPPEL alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff before death of father-in-law two-thirds of shares were transferred to defendants plaintiff claims that defendants held shares on constructive trust for plaintiff principles requiring caution when relying on uncorroborated representations made by deceased person HELD plaintiff has failed to establish that a promise or representation was made that whole of company would be hers no enforceable contract between father-in-law and plaintiff defendants did not induce breach of contract no express trust created in plaintiff’s favour no promissory estoppel CONSTRUCTIVE TRUSTS consideration of nature of constructive trust and when it can be said to arise UNDUE INFLUENCE circumstances of relationship between father-in-law and defendants would have raised presumption of undue influence which was not rebutted on facts of case relief not granted on basis of undue influence as no claim based on this ground was relied upon by plaintiff undue influence was only relied upon to resist defence to claim for specific performance
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| Link to announcement: Varma v Varma [2010] NSWSC 786 |
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| 28/07/2010 1:55 PM | | |
CORPORATIONS - receivers controllers and managers - receivers appointed out of court - whether sum payable to company is within charge held by receivers' appointor - liabilities of receivers - where company may be susceptible to civil penalty order under Queensland electricity legislation - whether personal liability may attach to receivers - receivers' lien in support of indemnity by company - proposed retention by receivers upon retirement - no demonstrated basis for finding of actual or contingent liability of receivers |
| Link to announcement: Jackgreen (International) Pty Ltd [2010] NSWSC 817 |
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| 28/07/2010 1:54 PM | | |
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| Link to announcement: Re McDonald Family Trust No 1 [2010] VSC 324 |
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| 28/07/2010 1:53 PM | | |
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| Link to announcement: Challenger Property Asset Management Pty Ltd & Anor v Stonnington City Council & Anor [2010] VSC 298 |
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| 28/07/2010 1:52 PM | | |
MAINTENANCE – Application by de facto partner of deceased – whether testator had made adequate provision – adequacy of a bare right of residence – relevance of the source of the assets of the estate |
| Link to announcement: Sellers v Scrivenger & Anor [2010] VSC 320 |
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| 26/07/2010 11:19 AM | | |
PARTNERSHIP - whether partnership exists - plaintiff sued defendant for debt - defendant says it is not indebted because the parties were partners - defendant seeks account - consideration of course of dealings between parties - indicia of partnership considered - held: no partnership judgment for debt in favour of plaintiff
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| Link to announcement: AM Marketing Pty Ltd v Howard Media Pty Ltd [2010] NSWSC 803 |
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| 26/07/2010 11:04 AM | | |
PRACTICE AND PROCEDURE – Applications for extension of time and leave to appeal – No satisfactory explanation for delay – Decision below not attended by sufficient doubt or risk of substantial injustice to warrant reconsideration on appeal – Applications refused – Relief granted on respondent’s summons dismissing purported appeal as incompetent. |
| Link to announcement: Mizzi Pty Ltd & Anor v Meredith & Anor [2010] VSCA 186 |
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| 23/07/2010 1:26 PM | | |
TRESPASS TO LAND – Unused road – Agricultural licence to use unused road – Rights of members of the public to pass over an unused road – Nuisance – Obstruction over unused road – Abatement of nuisance – Land Act 1958, ss 3A(3), 130, 130AB, 130AC, 349, 400, 401A, 402 and 407. |
| Link to announcement: Fenelon & Anor v Dove & Anor [2010] VSCA 187 |
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| 23/07/2010 1:24 PM | | |
CONTRACT – Domain name registrar agreement between registrar and regulator – Whether ‘security breach’ of registrar’s system – Failure by registrar to provide immediate notification of breach to regulator – Whether termination of agreement open to regulator – Whether ‘security breach’ only arises where unauthorised access to confidential, personal registrant data occurs – Whether breach could be retrospectively authorised – Necessity to maximise protection of registrants and to maintain confidence in domain name system as a public resource – Regulator to exercise its responsibilities in good faith – Breach not capable of remedy – Whether registrar acted in bad faith by transferring registrants to another entity without authorisation – Whether registrar acted in bad faith when providing notice to its registrants of the breach – Whether intermediate appellate court required to deal with all grounds of appeal – Kuru v New South Wales [2008] HCA 26; (2008) 236 CLR 1 applied. |
| Link to announcement: Australian Style Pty Ltd v .au Domain Administration Ltd [2010] VSCA 184 |
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| 23/07/2010 12:27 PM | | |
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| Link to announcement: Hodgson v Amcor Ltd; Amcor Ltd v Barnes [2010] VSC 204 |
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| 23/07/2010 12:25 PM | | |
PRACTICE AND PROCEDURE – Application for extension of time within which to file and serve Notice of Appeal – Delay both short and relatively inconsequential, with no prejudice to respondent – Proposed grounds tenable – Application for extension of time granted – Application for stay of execution, or of proceedings and/or orders made below – Stay refused. |
| Link to announcement: Pamamull v Albrizzi (Sales) Pty Ltd [2010] VSCA 185 |
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| 23/07/2010 11:45 AM | | |
CONTRACTS - general contractual principles - claim for repayment of plaintiff's money under share agreements - harsh and unconscionable contracts and statutory remedies - alternative claim under Contracts Review Act 1980 (NSW) - where alleged repudiation of share agreements by plaintiff - where alleged lack of clean hands on the part of plaintiff - where guarantee by first defendant to repay money not repaid by third defendant
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| Link to announcement: Zheng v Sui [2010] NSWSC 687 |
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| 23/07/2010 9:49 AM | | |
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| Link to announcement: Dromana Estate Limited v Wilmoth Field Warne (a firm) [2010] VSC 308 |
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| 23/07/2010 9:48 AM | | |
CONTRACTS – Entitlement to serve a notice to terminate – Principles of construction – Evidence of surrounding circumstances – Waiver – Validity of notice. |
| Link to announcement: 3143 Victoria St Doncaster Pty Ltd v Retirement Services Australia (RSA) Pty Ltd [2010] VSC 317 |
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| 23/07/2010 9:47 AM | | |
CONTRACTS – agency and agents – commission payable – agreement for commission calculated as ‘any dollar amount over’ a specified sale price – whether enforceable – undue influence – unconscionability – agent successfully sued for commission – appeal from orders of a magistrate – whether error of law – appeal from summary dismissal of appeal by associate justice – re-hearing de novo – ‘in all the circumstances, unconscionable’ as compared with ‘unconscionable within the meaning of the unwritten law’ – Trade Practices Act 1975 (Cth), ss 51AA-AC, Fair Trading Act 1999 (Vic), s 8 - Magistrates’ Court Act 1989 (Vic), s 109.
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| Link to announcement: Alievski v Cross Country Realty Victoria Pty Ltd [2010] VSC 316 |
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| 21/07/2010 2:57 PM | | |
TRUSTS – Declarations – whether appointment of trustee valid – whether vesting of real property in designated unit trust valid – whether plaintiff had standing to make application – court’s inherent power to make orders vesting property – Trustee Act 1958 s 51(2). |
| Link to announcement: Bloomingdale Holdings Pty Ltd v 87 Stevedore Street Pty Ltd & Ors [2010] VSC 268 |
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| 20/07/2010 3:53 PM | | |
Contracts – Building, engineering and related contracts – The contract – Generally – Agreement for the provision of licence to use drawings – Whether a construction contract – Whether a “related service” under the Act
Procedure – Supreme Court procedure – Queensland – Jurisdiction and generally – Generally –Inherent jurisdiction to determine whether an inferior tribunal exceeded its jurisdiction
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| Link to announcement: Sheppard Homes Pty Ltd v FADL Industrial Pty Ltd [2010] QSC 228 |
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| 20/07/2010 3:51 PM | | |
CONTRACT – building contracts – construction – the defendant Principal and the plaintiff Contractor entered into a construction contract (“the Contract”) – later they entered into an Advance Payment Deed which amended the Contract and which inserted provisions for the making of Advance Payments to the Contractor and for the provision by the Contractor of Advance Payment Bonds to secure repayment – the Principal advanced or made Advance Payments and the Contractor provided two Advance Payment Bonds each in the form of an unconditional Bank Guarantee (“the Guarantees”) – the Advance Payments became repayable on provision of a Certificate of Practical Completion – the Principal was in addition the Superintendent under the Contract – it purported to vary the Contract by deletion of work and then issue a Certificate of Practical Completion and then sought to call on the Guarantees – the Contractor asserted that the variation was beyond power and the Certificate of Practical Completion was invalid – alternatively it asserted that the Certificate of Practical Completion was issued in breach of an obligation of the defendant to act fairly – the Contractor asserted that a call by the Principal on the Guarantees would be in breach of an implied negative stipulation in the Contract that it would not do so if the Advance Payment was not repayable – HELD – held that the Notice of Variation to Works was unauthorised and the Certificate of Practical Completion was ineffective – held further that the Superintendent did not act fairly in giving the Notice of Variation to Works and issuing the Certificate of Practical Completion – held further that the Principal breached its express contractual obligations – held further that a call on the Guarantees would be in breach of an implied negative stipulation as contended for
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| Link to announcement: Kell & Rigby Holdings Pty Limited v Lindsay Bennelong Developments Pty Ltd [2010] NSWSC 777 |
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| 20/07/2010 3:50 PM | | |
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENTS CONTAINED IN CORRESPONDENCE – where appellant sought to gain control of a granite quarrying venture conducted by the parties jointly – where parties entered into negotiations for the appellant to acquire the respondent’s share in the venture – where respondent resigned as director but did not transfer interest in the venture to the appellant – where respondent claimed $450,000 from the appellant for breach of the alleged contract – where trial judge found that emails between appellant and respondent constituted an agreement – whether the emails constituted the pleaded agreement – whether the emails were capable of constituting the agreement upon which the respondent sued – whether the agreement was void for uncertainty – whether there was a common mistake of fact made by the parties as to the subject matter of the contract – whether a binding promise to pay $450,000 arose in the manner alleged by the respondent – whether the emails constituted the sole contract between the parties – whether the parties had abandoned any agreement between them
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| Link to announcement: Supangat v Byrnes [2010] QCA 176 |
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| 20/07/2010 3:49 PM | | |
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENTS CONTAINED IN CORRESPONDENCE – where appellant sought to gain control of a granite quarrying venture conducted by the parties jointly – where parties entered into negotiations for the appellant to acquire the respondent’s share in the venture – where respondent resigned as director but did not transfer interest in the venture to the appellant – where respondent claimed $450,000 from the appellant for breach of the alleged contract – where trial judge found that emails between appellant and respondent constituted an agreement – whether the emails constituted the pleaded agreement – whether the emails were capable of constituting the agreement upon which the respondent sued – whether the agreement was void for uncertainty – whether there was a common mistake of fact made by the parties as to the subject matter of the contract – whether a binding promise to pay $450,000 arose in the manner alleged by the respondent – whether the emails constituted the sole contract between the parties – whether the parties had abandoned any agreement between them
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| Link to announcement: Supangat v Byrnes [2010] QCA 176 |
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| 20/07/2010 3:47 PM | | |
ASIC has disqualified former Melbourne property spruiker, Mr Henry Kaye, from managing corporations for five years.
The disqualification order permits, subject to conditions, Mr Kaye to manage two companies, Dorcas 1 Pty Ltd and Medinvest 2 Pty Ltd, being the trustee companies to Mr Kaye’s self-managed superannuation funds.
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| Link to announcement: 10-160AD ASIC disqualifies Henry Kaye from managing corporations for five years |
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| 20/07/2010 12:23 PM | | |
Application by liquidator to Court to fix his remuneration under s 473(3) of the Corporations Act 2001 – objection by creditor to competence of the application on basis that a precondition of the Committee of Inspection (COI) having not agreed the remuneration was not satisfied – whether COI validly established under s 548(1) of the Act – held not validly established as no meeting of the contributories convened as required by s 548(1) – held preconditions for jurisdiction of Court under s 473(3) satisfied – objection on competence fails. |
| Link to announcement: JINDAL TRANSWORLD PVT LTD v SCOTTSDALE HOMES NO. 10 PTY LTD (No 2) [2010] SASC 210 |
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| 20/07/2010 12:22 PM | | |
CORPORATIONS – application by Australian Securities and Investments Commission to appoint provisional liquidator – considerations relevant to appointment of provisional liquidator, including: apparent or probable insolvency of companies, risk of dissipation of companies' assets, public interest in a prompt independent examination of companies' accounts, financial records and transactions.
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| Link to announcement: Australian Securities & Investments Commission v Tax Returns Australia Dot Com Pty Ltd [2010] FCA 715 |
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| 20/07/2010 12:21 PM | | |
REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE
REAL PROPERTY - GENERAL PRINCIPLES - REGISTRATION - WHAT IS CAPABLE OF REGISTRATION
SUPERANNUATION - INDUSTRY REGULATION
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSIDERATION - FAILURE OF CONSIDERATION
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS
EQUITY - GENERAL PRINCIPLES - MISTAKE - EFFECT ON CONTRACTS
EQUITY - GENERAL PRINCIPLES - REMEDIES AND PROCEDURE - FRAUD OR MISREPRESENTATION AS A DEFENCE OR ANSWER
Appeal from decision of Judge of Supreme Court against decision that a second mortgage over two certificates of title was valid and binding and that a priority agreement relating to those titles was enforceable - whether second mortgagee's title indefeasible - whether second mortgage validly vested - whether contended irregularity in registering mortgage invalidated registration - whether the conferral of legal title pursuant to section 69 of the Real Property Act 1886 (SA) inconsistent with provisions of the Superannuation (Industry) Supervision Act 1993 (Cth) and invalid pursuant to operation of section 109 of the Constitution - whether overall contractual arrangement frustrated - whether there had been a common mistake of such a nature that the transaction was not enforceable - whether priority agreement valid and enforceable - whether legally sufficient consideration passed in relation to the grant of priority - whether respondent, a third party beneficiary to the transaction, had standing to sue on the priority agreement - whether respondent could enforce rights under the priority agreement pursuant to the provisions of the Property Law Act 1974 (Qld) - whether priority agreement unenforceable as a consequence of frustration and common mistake. |
| Link to announcement: MERRELL ASSOCIATES LTD v HL (QLD) NOMINEES PTY LTD [2010] SASC 155 |
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| 20/07/2010 12:19 PM | | |
PROMISSORY ESTOPPEL
alleged promises and representations made by father-in-law to plaintiff in relation to transfer of all of shares in company owned by father-in-law to plaintiff
before death of father-in-law two-thirds of shares were transferred to defendants
plaintiff claims that defendants held shares on constructive trust for plaintiff
principles requiring caution when relying on uncorroborated representations made by deceased person |
| Link to announcement: Varma v Varma [2010] NSWSC 786 |
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| 19/07/2010 12:53 PM | | |
CORPORATIONS – Statutory demand – Whether genuine dispute about existence of debt – Whether genuine offsetting claim – Corporations Act 2001 (Cth) ss 459G, 459H. |
| Link to announcement: Re LPD Corporation Pty Ltd [2010] VSC 313 |
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| 19/07/2010 8:48 AM | | |
CORPORATIONS – winding up – genuine dispute between mortgagee and receivers as to amount secured by mortgage – dispute jeopardised timely sale of land – court ordered discharge with proceeds of sale to be held in an interest bearing account pending resolution of dispute – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate REAL PROPERTY – mortgages – court ordered discharge to be provided – proceeds of sale held in interest bearing account pending resolution of dispute as to amount secured by mortgage – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate EQUITY – consideration of Court’s discretion in imposing condition on which proceeds held in interest bearing account – obligation to consider whether condition just and reasonable between the parties
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| Link to announcement: AVS Property Pty Ltd v McMaster [2010] FCAFC 81 |
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| 19/07/2010 8:47 AM | | |
CONTRACT – terms – construction – deed of purchase – purchase of interests of investors in unregistered managed investment scheme which was being wound up by the Court – terms of purchase deed expressed to include whole of entitlement of vendor in relation to scheme – whether deed effective to transfer equitable interests claimed by vendor in relation to land which was an asset of scheme, which vendor claimed to hold in priority to claims of investors in scheme – examination of circumstances surrounding entry into purchase deed – application of objective test – whether course of negotiations would have led reasonable people to regard subject matter of purchase as including all entitlements of vendor
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| Link to announcement: Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) & Ors [2010] FCA 710 |
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| 19/07/2010 8:45 AM | | |
CORPORATIONS - meetings of members - meeting called by a member under Corporations Act 2001 (Cth), s 249F - proposed resolution to appoint two persons as directors - whether a "proper purpose" - where proposed appointees are ex-wife and accountant of disqualified former director - whether they will act in the interests of the company - whether they will be puppets of ex-director - CORPORATIONS - declaratory relief as to efficacy of action to appoint directors - whether plaintiff has "clean hands" - CORPORATIONS - constitution - provision for rotation of directors at each "ordinary general meeting" - whether meeting called by member under s 249F is an "ordinary general meeting" - effect of automatic re-appointment provision - ASIC records prima facie evidence of directorship - CORPORATIONS - meeting of directors - one director calls meeting - that director gives explicit notice of purpose of meeting - meeting purports to resolve to authorise that director to act as representative of company in all aspects of certain matter - no such proposed authorisation included in statement of meeting's purpose - whether resolution valid |
| Link to announcement: Dhami v Martin [2010] NSWSC 770 |
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| 19/07/2010 8:43 AM | | |
TAXATION – Goods and Services Tax – entitlement of government entity to input tax credits in respect of payments to taxi-cab operators under program for transport of individuals with disabilities – whether government entity made a "creditable acquisition" of transport of disabled passengers |
| Link to announcement: Commissioner of Taxation v Secretary to the Department of Transport (Victoria) [2010] FCAFC 84 |
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| 14/07/2010 12:30 PM | | |
CONTRACTS - General Contractual Principles - Offer and Acceptance - whether admitted loan by plaintiff to defendants was repayable if and when they obtained refinance, or within 14 days - whether loan was subject to an up-front amount as interest or was interest free - whether mortgage that failed to state its secured the loan should be rectified - whether the mortgage was subject to interest even though not claimed therein - whether a fixed amount should be paid in lieu of costs |
| Link to announcement: Lakaev Pty Limited v Grubisic [2010] NSWSC 698 |
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| 14/07/2010 12:29 PM | | |
PROCEDURE - Costs - plaintiffs successful in having contract for sale of premises partly commercial and partly residential rectified by adding to the purchase price "+ GST" - defence alleged GST not payable because not a taxable supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth) as plaintiffs were not carrying on an enterprise - order made for plaintiffs to seek a private indirect tax ruling from the Commissioner of Taxation - ruling made that not a taxable supply because GST turnover and projected GST turnover did not exceed the registration turnover threshold and no GST was payable - whether there should be a discount in the plaintiffs' costs for pyrrhic victory |
| Link to announcement: Ashton v Monteleone (No 2) [2010] NSWSC 745 |
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| 14/07/2010 12:28 PM | | |
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| Link to announcement: Snowy Hydro Limited v Commissioner for State Revenue (No 2) [2010] VSC 289 |
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| 14/07/2010 12:25 PM | | |
CORPORATIONS – winding up – genuine dispute between mortgagee and receivers as to amount secured by mortgage – dispute jeopardised timely sale of land – court ordered discharge with proceeds of sale to be held in an interest bearing account pending resolution of dispute – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate
REAL PROPERTY – mortgages – court ordered discharge to be provided – proceeds of sale held in interest bearing account pending resolution of dispute as to amount secured by mortgage – amount secured by mortgage subsequently determined by court and principal paid to mortgagee – whether mortgagee entitled to interest on principal held in account at mortgage rate
EQUITY – consideration of Court’s discretion in imposing condition on which proceeds held in interest bearing account – obligation to consider whether condition just and reasonable between the parties |
| Link to announcement: AVS Property Pty Ltd v McMaster [2010] FCAFC 81 |
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| 14/07/2010 12:23 PM | | |
CONTRACT – terms – construction – deed of purchase – purchase of interests of investors in unregistered managed investment scheme which was being wound up by the Court – terms of purchase deed expressed to include whole of entitlement of vendor in relation to scheme – whether deed effective to transfer equitable interests claimed by vendor in relation to land which was an asset of scheme, which vendor claimed to hold in priority to claims of investors in scheme – examination of circumstances surrounding entry into purchase deed – application of objective test – whether course of negotiations would have led reasonable people to regard subject matter of purchase as including all entitlements of vendor |
| Link to announcement: Australian Securities & Investments Commission v GDK Financial Solutions Pty Ltd (in liq) & Ors [2010] FCA 710 |
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| 6/07/2010 2:33 PM | | |
Commercial lease - Failure to pay rent - Clause prohibiting set off or deduction - Proper construction - Whether contra proferentum rule applicable - Whether tenant entitled to set off payments alleged to be void or made by mistake - Onus of proof on tenant to prove conversion of tenant's fixtures - Award of nominal damages - Insufficient evidence to support finding - Award of nominal damages overturned - Turns on own facts |
| Link to announcement: SANDBANK HOLDINGS PTY LTD -v- DURKAN [2010] WASCA 122 |
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| 5/07/2010 9:57 PM | | |
CATCHWORDS: PRACTICE AND PROCEDURE - Whether leave to appeal should be granted from orders of Associate Judge dismissing application for joinder of further plaintiff and staying paragraphs of further amended statement of claim – whether decisions attended with sufficient doubt – whether substantial injustice if decisions not reversed
PRACTICE AND PROCEDURE – application for joinder of New Zealand company seeking to sue in Victoria in respect of New Zealand claims – defendant resident in Victoria - whether forum inappropriate – availability of relief in New Zealand – existing proceedings in New Zealand and Victoria
PRACTICE AND PROCEDURE – declaration – utility when no damages to be recovered
CORPORATIONS – shareholder – whether shareholder can sue for loss where separate duty owed to it – whether loss is a reflective loss suffered by the company |
| Link to announcement: Groeneveld Australia Pty Ltd & Ors v Nolten & Ors [2010] VSC 249 |
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| 5/07/2010 9:54 PM | | |
Practice and Procedure ─ Costs ─ Security for costs ─ Substantial passage of time since commencement of proceeding ─ Proceeding fixed for trial ─ Plaintiff in receivership ─ Bankruptcy of controlling director ─ Insolvency of plaintiff ─ Lateness of application ─ Evidentiary requirements ─ Effect on discretion |
| Link to announcement: Beluga Developments Pty Ltd v Sobel Investments Pty Ltd & Anor [2010] VSC 303 |
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| 5/07/2010 9:52 PM | | |
CORPORATIONS – Examinations – liquidator – application to set aside summonses for examination – whether summonses sought for improper purpose – proceedings already on foot – whether liquidator’s affidavit failed to disclose material matters. |
| Link to announcement: Lamb (in his capacity as Liquidator of Redcastle Estate Pty Ltd) v Mentha [2010] FCA 695 |
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| 5/07/2010 9:51 PM | | |
TAXATION - unqualified cost consultant - allowance for attendance. |
| Link to announcement: Mietto v G4S Custodial Services Pty Ltd [2010] VSC 304 |
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| 2/07/2010 2:18 PM | | |
From today,ASIC will take over responsibility for consumer credit and finance broking from the states and territories under the National Consumer Credit Protection Act 2009 (National Credit Act). For the first time, home loans, personal loans, credit cards, consumer leases, overdrafts and line of credit accounts, among other products and services, will be regulated under a single, nationally consistent regime |
| Link to announcement: 10-144AD ASIC helps consumers understand new credit laws |
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| 2/07/2010 2:08 PM | | |
New legislation in relation to consumer credit means that from today, home loans, personal loans, credit cards, consumer leases, overdrafts and line of credit accounts, among other products and services, will be regulated by ASIC under a single, nationally consistent regime.
As it assumes responsibility for these new laws, which are designed to better protect the interests of borrowers and improve standards across the industry, ASIC has offered borrowers some practical guidance on dealing with credit and managing debt.
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| Link to announcement: 10-145AD Six steps to smarter borrowing |
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| 2/07/2010 2:07 PM | | |
The licensing of providers of consumer credit, credit assistance and intermediaries by ASIC starts today, following a three month registration period.
In the first few hours of the day, ASIC has already received a number of licence applications from credit registrants in Victoria and South Australia.The registration process, which saw nearly 14,800 people apply, was the first step in complying with the new licensing obligations under the National Consumer Credit Protection Act 2009 (National Credit Act), which have been introduced to raise standards across the consumer credit industry.
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| Link to announcement: 10-143AD Licensing starts under new national consumer credit laws |
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| 2/07/2010 2:02 PM | | |
COMMERCIAL AND EQUITY – Managed Investment Scheme– Winding up by a person appointed under s 601NF(1) of the Corporations Act 2001 (Cth) – Conflict of duty – Person appointed to wind up the schemes also the liquidator of the responsible entity – Directions in winding up under s 601NF(2) of the Corporations Act. |
| Link to announcement: Re Environinvest Ltd (No3) [2010] VSC 301 |
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| 2/07/2010 2:01 PM | | |
CONTRACTS – construction of commercial contract for the supply of water for the purpose of irrigating olive tree plantations which constitute the physical subject matter of six managed investment schemes – whether clauses which provide for the termination of the water contract when the original manager is removed as responsible entity of the schemes or retires from that position are triggered only when the schemes are terminated – clauses construed in accordance with the natural and ordinary meaning of the language used – whether clauses void as against public policy because they operate to circumvent the purpose, policy and intent of s 601FS(1) and s 601FT(1) of the Corporations Act 2001 (Cth) ( the Corporations Act) – whether, upon the true construction of the water contract, the obligation imposed upon the responsible entity (manager) which was party to that contract was an obligation to pay a single indivisible sum with the consequence that the payment required cannot be apportioned as between some of the projects and others and cannot be apportioned by reference to only part of a particular financial year
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| Link to announcement: Australian Olive Holdings Pty Ltd v Huntley Management Limited [2010] FCAFC 76 |
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| 2/07/2010 2:00 PM | | |
INCOME TAX – appeal from decision of the Administrative Appeals Tribunal – whether corporate restructure was a scheme entered into for the purpose of obtaining a tax benefit – whether Tribunal impermissibly took into account subjective purposes of taxpayer – whether Tribunal properly considered the form and substance of the scheme. Held: No error in the Tribunal’s decision; appeal dismissed. |
| Link to announcement: Commissioner of Taxation v News Australia Holdings Pty Limited [2010] FCAFC 78 |
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| 2/07/2010 1:58 PM | | |
TRUSTS AND TRUSTEES – discretionary trust – powers of trustees – legitimacy of accounting approach – trustee entitled to treat unrealised gain on investments as “income” – permissible practice according to commercial accounting standards and principles – trustee validly determined to treat unrealised gain as “income” – acquiescence in annual financial accounts
WORDS AND PHRASES – construction of trust deed – “income” |
| Link to announcement: Clark v Inglis [2010] NSWCA 144 |
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| 2/07/2010 1:56 PM | | |
TRADE PRACTICES – Claim under s.52 of the Trade Practices Act 1974 (Cth) – alleged copying of the bathmat ensembles – copied mats sourced from China – found in the Sydney market bearing identification labels of the original genuine mat – claim for damages pursuant to s.82. |
| Link to announcement: The Ridge Trading Pty Ltd v JC Export & Import Pty Ltd & Anor [2010] FMCA 424 |
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| 2/07/2010 1:55 PM | | |
Corporations - Statutory demands - Genuine dispute - Offsetting claim - Some other reason |
| Link to announcement: CLEV-A-GARDEN LTD -v- MCAD PTY LTD [2010] WASC 158 |
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| 2/07/2010 1:52 PM | | |
CORPORATIONS – CHARGES, DEBENTURES AND OTHER BORROWINGS – GENERALLY – FLOATING CHARGES AND CRYSTALLISATION THEREOF – where first defendant was placed in voluntary administration – where plaintiff given leave to proceed pursuant to s 440D of the Corporations Act 2001 (Cth) – where administrator given notice of the trial but elected not to defend the proceeding – where plaintiff was owner of land – where a hotel was erected on land and first defendant and another were lessees of the premises – where plaintiff as lender and first and third defendant as borrowers and second defendants as guarantors, entered into a loan agreement – where first defendant as mortgagor and plaintiff as mortgagee entered into a mortgage debenture – where plaintiff gave notice to first defendant of default under the loan agreement and mortgage debenture, and crystallisation of the charge created by the mortgage debenture over specific assets – where plaintiff claims $3,027,705.17 as "moneys hereby secured" within the meaning of the loan agreement – where mortgage debenture secured repayment of "moneys hereby secured", which were defined in schedule 3 of the mortgage debenture by reference to the loan agreement – where by clause 5 of the mortgage debenture the mortgagor charged, "all and singular its undertaking and all its property and assets real and personal, whether at Law or in Equity, whatsoever and wheresoever both present and future..." – where by clause 6 the charge operated as a fixed and specific charge over assets in schedule 7 and a floating charge over all other property and assets in the mortgaged premises – where there was no property set out in schedule 7 – where mortgage debenture did not contain any provision for automatic crystallisation on default – where plaintiff seeks a declaration of a floating charge over land pursuant to mortgage debenture, and a declaration that land is charged with repayment of $3,927,705.15 pursuant to loan agreement – whether those moneys are due and owing pursuant to loan agreement – whether by the mortgage debenture the first defendant granted the plaintiff a floating charge over all its assets and undertaking to secure repayment of moneys owing pursuant to the loan agreement |
| Link to announcement: Geoff Sharpe Pty Limited v M&E Fitzgerald Holdings Pty Ltd and Ors [2010] QSC 225 |
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| 2/07/2010 1:51 PM | | |
CORPORATIONS - voluntary administration - administration under deed of company arrangement - summons for examination issued under s 596B - applicant for summons an "eligible applicant" by virtue solely of ASIC authorisation - no time limit express or implied to "eligible applicant" status - deed of company arrangement terminated before any examination appointed or conducted - whether summons may be enforced and examination conducted after termination of deed - CONSTITUTIONAL LAW - judicial power of the Commonwealth - court empowered by Commonwealth law to order that person submit to examination about affairs of company subject to deed of company arrangement - examination inquisitorial in nature and of itself not judicial - whether power to compel examination incidental to judicial power - whether court given general supervisory jurisdiction with respect to company subject to deed of company arrangement |
| Link to announcement: Ariff v Fong [2010] NSWSC 696 |
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| 2/07/2010 1:49 PM | | |
CORPORATIONS – winding up – court approval for liquidator’s litigation funding agreement – ex parte hearing – confidentiality orders – right to be heard – major creditors – committee of inspection – creditor seeking removal of liquidator.
NATURAL JUSTICE – right to be heard – necessity for relevant right, interest or expectation – must exist in fact – no freestanding right to be heard. |
| Link to announcement: Deloughery & Ors v Weston [2010] NSWCA 148 |
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| 2/07/2010 1:48 PM | | |
Contracts – General contractual principles – Illegal and void contracts – Contracts contrary to public policy – Particular contracts – Contracts to compound crimes – Stifling of prosecution as term of contract – Whether moral or social duty to prosecute. |
| Link to announcement: Woodham v Roberts Limited [2010] TASSC 31 |
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| 29/06/2010 11:32 AM | | |
BERNARD HOEKMANa1 c1, WILL MARTINa1 c2 and AADITYA MATTOOa1 c3
World Trade Review, Volume 9, Issue 03, July 2010, pp 505 - 530 doi:10.1017/S1474745610000297
The Doha Round must be concluded not because it will produce dramatic liberalization but because it will create greater security of market access. Its conclusion would strengthen, symbolically and substantively, the WTO's valuable role in restraining protectionism. |
| Link to announcement: Conclude Doha: it matters! |
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| 29/06/2010 11:17 AM | | |
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| Link to announcement: Vartanians v St. Gregory’s Armenian School Inc [2010] NSWSC 701 |
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| 29/06/2010 11:16 AM | | |
CORPORATIONS – application for determination of administrator’s remuneration pursuant to s 449E(1)(c) of the Corporations Act 2001 (Cth) – whether legal fees constitute part of remuneration – legal fees held to be disbursements – remuneration does not include disbursements – remuneration for services rendered outside of the administration period cannot be determined by the Court |
| Link to announcement: Huxtable, in the matter of Timeshare Resort Club Ltd ACN 009 085 358 (in liq) [2010] FCA 673 |
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| 29/06/2010 1:10 AM | | |
New guidelines are set out in an updated version of Regulatory Guide (RG) 69 Debentures and unsecured notes – improving disclosure for retail investors. |
| Link to announcement: ASIC strengthens disclosure requirements for debentures and unsecured notes |
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| 29/06/2010 1:08 AM | | |
The regional Tasmanian roadshows will provide investors and industry representatives with information about ASIC's recent activities and financial issues, including the new credit laws, safer investing and scams.
Following on from roadshows conducted in regional areas elsewhere, the northern Tasmanian roadshow – headed up by ASIC’s Tasmanian Regional Commissioner, Ms Julie Read – is connecting with some of ASIC's regional stakeholders |
| Link to announcement: ASIC roadshows for northern Tasmania |
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| 29/06/2010 1:07 AM | | |
ASIC today released further updated versions of regulatory guides, which were first issued in December 2009 as part of ASIC’s package of guidance to prospective credit licensees on the implementation of the National Consumer Credit Protection Act 2009 (National Credit Act). |
| Link to announcement: 10-134AD ASIC releases further updated guidance to assist credit licensees |
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| 29/06/2010 1:06 AM | | |
ASIC has successfully obtained court approval of a $2.5 million settlement on behalf of clients who invested in Westpoint products on the advice of Glenhurst Corporation Pty Ltd (Glenhurst).
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| Link to announcement: ASIC obtains fifth Westpoint settlement |
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| 29/06/2010 12:31 AM | | |
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| Link to announcement: Orr v State of Tasmania [2010] TASSC 28 |
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| 29/06/2010 12:30 AM | | |
INCOME TAX- transfer pricing, methodology of transfer pricing, application of Div 13 of Pt III of the Income Tax Assessment Act 1936, application of international tax treaties (Double Taxation Agreements), conferral of power by international treaties to impose tax, application of s 136AD(3) and (4), whether more than arm’s length consideration was given by the applicant, transfer pricing methods, comparable transactions. |
| Link to announcement: SNF (Australia) Pty Ltd v Commissioner of Taxation [2010] FCA 635 |
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| 29/06/2010 12:30 AM | | |
INCOME TAX – withholding payments being salary or wages – what constitutes the withholding of an amount from salary or wages paid to an individual as an employee under the Pay As You Go (PAYG) withholding system in Pt 2-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) – whether, by virtue of s 18- 15(1), the applicant is entitled to a credit for amounts said to be withheld from salary or wages said to be paid to him – whether quantification of the credit on a notice of assessment is part of the process of the assessment and so a particular of the assessment protected by s 177(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA 36) or merely a particular of the statement of account between the applicant and the Commissioner.
HELD: The applicant is entitled to a credit by virtue of s 18-15(1) of Sch 1 to the TAA but only for the amounts actually withheld from the payments of salary or wages actually paid to the applicant.
HELD: The quantification of the credit on a notice of assessment is not a particular of the assessment and is not protected by s 177(1) of the ITAA 36 |
| Link to announcement: David Cassaniti v Commissioner of Taxation [2010] FCA 641 |
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| 29/06/2010 12:29 AM | | |
INCOME TAX – withholding payments being salary or wages – what constitutes the withholding of an amount from salary or wages paid to an individual as an employee under the Pay As You Go (PAYG) withholding system in Pt 2-5 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) – whether, by virtue of s 18- 15(1), the applicant is entitled to a credit for amounts said to be withheld from salary or wages said to be paid to her – whether salary or wages paid to the applicant by reason of drawings she made on her employer’s bank account and payments made out of that account on her behalf which were subsequently debited to her loan account and reconciled at year end with her wages account.
HELD: No salary or wages were paid to the applicant from which amounts of PAYG withholding could be withheld.
HELD: No amounts of PAYG withholding were withheld so as to entitle the applicant to a credit by virtue of s 18- 15(1) of Sch 1 to the TAA. |
| Link to announcement: Patricia Cassaniti v Commissioner of Taxation [2010] FCA 642 |
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| 29/06/2010 12:26 AM | | |
PRACTICE AND PROCEDURE – Security for costs – Relevance of litigation funder |
| Link to announcement: Bufalo Corporation Pty Ltd (Rec & man app'td) (in liq) v Lendlease Primelife Limited & Ors (No 3) [2010] VSC 263 |
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| 29/06/2010 12:22 AM | | |
DISCOVERY ― Inspection of documents ― Computer data base as document ― Expert inspection of computer server and networked documents ― Alleged breach of confidence ― Search for confidential information on database ― Discretionary considerations |
| Link to announcement: Automotive Dealer Administration Services Pty Ltd v Kulik & Ors [2010] VSC 293 |
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| 25/06/2010 2:36 PM | | |
ADMINISTRATIVE LAW – occupational licensing – building practitioners – Building Practitioners Board – inquiries and disciplinary action – whether board has jurisdiction where builder’s registration is suspended after inquiry was commenced – Building Act 1993, ss 175, 177, 178, 179 and 179A – Building (Amendment) Act 2001. |
| Link to announcement: Ariss v Building Practitioners Board [2010] VSC 295 |
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| 25/06/2010 1:32 PM | | |
Legal Practitioner – Solicitors – Administrative law – Complaint against solicitor – Decision by Legal Services Commissioner that complaint was a disciplinary complaint and that it should not be summarily dismissed – No reasonable apprehension of bias on part of Commissioner – Whether reasons for decision adequate – Difference between a conclusion and reasons – Whether relief available, and should be granted, to appellant – Appeal dismissed as incompetent. |
| Link to announcement: Byrne v Legal Services Commissioner [2010] VSCA 162 |
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| 25/06/2010 1:23 PM | | |
TRIBUNALS – Victorian Civil and Administrative Tribunal – Dispute between client and legal practitioner – Allegations of misconduct – Claim dismissed with indemnity costs – Appeal as of right on questions of law – Appeal raised questions of fact – Findings open – No denial of natural justice – No error of law – Discretion on costs properly exercised – Appeal dismissed with costs. |
| Link to announcement: He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158 |
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| 25/06/2010 10:59 AM | | |
PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
TAXES AND DUTIES – MISCELLANEOUS TAXES –- where the plaintiff made an “administrative overpayment” to the defendant – where the plaintiff established a Running Business Account for the defendant – where the plaintiff charged a general interest charge in the Running Business Account - whether the plaintiff can obtain summary judgment against the defendant for the balance of a Running Business Account |
| Link to announcement: Deputy Commissioner of Taxation v. Price [2010] QSC 196 |
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| 25/06/2010 10:58 AM | | |
Contract - General principles - Construction and interpretation - Nature of terms
Contract - Remedies for breach of condition - Recovery of advance payment - Total failure of consideration
Private international law - Choice of law - Contract - Proper law of contract - C.i.f contract for the sale of goods
Sale of goods - C.i.f contracts - General principles
Sale of goods - Remedies for breach of condition - Right of rejection - When buyer deemed to have accepted goods - Section 35 Sale of Goods Act 1895 (WA)
Legislation:
Sale of Goods (Vienna Convention) Act 1986 (WA), s 5, s 6
Sale of Goods Act 1895 (WA), s 5(1), s 5(3), s 14(i), s 14(ii), s 14(iv), s 20, s 27, s 34, s 35, s 54, s 55, s 60(1) |
| Link to announcement: ATTORNEY-GENERAL OF BOTSWANA -v- AUSSIE DIAMOND PRODUCTS PTY LTD [No 3] [2010] WASC 141 |
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| 25/06/2010 10:55 AM | | |
DEEDS requirements for valid execution whether plaintiff can take benefit of deed despite not reading properly or signing document HELD plaintiff able to rely on deed deed validly affirmed in a subsequent deed of variation LOAN AND GUARANTEE whether deed constitutes a binding agreement for guarantee supported by good consideration HELD deed constitutes valid contract of guarantee under which guarantee extends to repayment of principal, interest and additional moneys guarantee not contingent on notice or demand plaintiff able to enforce guarantee against second defendant despite availability of higher remedy against first defendant plaintiff’s inability to establish exact amount remaining due under loan does not preclude recovery matter to be referred to Associate Justice for determination of exact amount outstanding relief not available under Contracts Review Act 1980 |
| Link to announcement: Matouk v The Entrance Seabreeze Pty Ltd [2010] NSWSC 649 |
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| 25/06/2010 10:53 AM | | |
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| Link to announcement: Insight Vacations Pty Ltd v Young [2010] NSWCA 137 |
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| 25/06/2010 10:51 AM | | |
CORPORATIONS – Statutory demand – Application to set aside – Claim of genuine dispute about existence of debt – Claim that “some other reason” why the demand should be set aside – Whether demand specified a fixed sum payable – Whether amount payable sufficiently verified – Corporations Act 2001 (Cth) ss 459G, 459H, 459J |
| Link to announcement: Re Kallawar Holdings Pty Ltd [2010] VSC 288 |
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| 24/06/2010 3:56 PM | | |
Vendor and purchaser – Contract for sale of land – Failure by purchaser to settle on date appointed – Whether time remained of the essence or whether vendor had waived entitlement for strict compliance – Whether rescission notice effective to terminate contract on purchaser’s failure to comply – Whether notice sufficient to re-establish essentiality of time as a consequence of unreasonable delay and/or breach of obligations of purchaser – Whether time stipulated by notice reasonable time for performance - Greydae Pty Ltd v Malilane Pty Ltd [2003] VSCA 27 applied. |
| Link to announcement: Uniting Church in Australia Property Trust (Vic) v Nadajamoorthy [2010] VSC 290 |
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| 24/06/2010 10:41 AM | | |
CORPORATIONS – Derivative Action – Application for interim order for leave to bring proceeding on behalf of a company – Relevant criteria in granting leave – Whether applicant acting in good faith – Whether in best interests of company that leave be granted – Whether proposed proceeding involves serious issues to be tried – Whether leave can be granted nunc pro tunc – Corporations Act 2001 (Cth) ss 237, 241 |
| Link to announcement: Re Brighter Directions Pty Ltd [2010] VSC 287 |
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| 24/06/2010 10:36 AM | | |
Former contributor to the popular self-help product The Secret, Mr David Gary Schirmer of Warrandyte, Victoria, has been permanently banned from providing financial services following an ASIC investigation. |
| Link to announcement: 10-130AD ASIC bans Victorian man from providing financial services for life |
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| 23/06/2010 2:22 PM | | |
Administrative law - Freedom of information - Exempt documents - Appellant, convicted of murdering husband, unsuccessfully submitted Petition for Mercy to Attorney-General - Announcement of Attorney-General’s decision did not refer to all legal advice received - Appellant sought access to legal advice referred to - Section 50(4) of the Freedom of Information Act 1982 (Vic) (-FOI Act-) provides that on hearing an application for review the Victorian Civil and Administrative Tribunal (-VCAT-) has power to grant access to exempt documents where the public interest requires that access should be granted - Whether legal advice not referred to was both relevantly and, as a matter of substance, materially different to the advice on which the decision was based - Whether, in applying s 50(4) of FOI Act, the Attorney-General fell under an obligation of public accountability by issuing a press release - Whether by issuing a press release the Attorney-General was seeking to give the fullest information as to the process that had been followed - Whether the Attorney-General was not giving the fullest information as to the process that had been followed but, rather, had created a misleading impression as to that process — Whether the Attorney-General had assumed political accountability in respect of the decision made on the Appellant’s Petition of Mercy in circumstances that attracted the operation of s 50(4) of FOI Act.
Administrative law - Judicial review - Error of law - Victorian Civil and Administrative Tribunal Act 1998 (Vic) (-VCAT Act-), s 148(1)(a) provides for an appeal on a question of law from an order of VCAT to the Court of Appeal - Section 148(7)(b) of VCAT Act enables Court of Appeal to make order VCAT could have made where error of law found - VCAT granted access pursuant to s 50(4) of FOI Act - Court of Appeal found error of law and allowed appeal - High Court vacated Court of Appeal's orders and remitted to Court of Appeal - Whether Court of Appeal, on remitter, performed task required of it - Whether Court of Appeal, on remitter, found error of law in VCAT decision - Whether error of law in VCAT decision - Whether s 50(4) of FOI Act was incapable of application - Whether further remitter required |
| Link to announcement: Osland v Secretary to the Department of Justice [2010] HCA 24 |
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| 23/06/2010 2:17 PM | | |
CIVIL PROCEEDING – Interest – Costs. |
| Link to announcement: Watkins v The State of Victoria & Ors (No 2) [2010] VSCA 148 |
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| 22/06/2010 4:32 PM | | |
JUDGMENT – Defaulting executor – Interest – Costs – Indemnity basis. |
| Link to announcement: Sadri v Samian (No 4) [2010] VSC 280 |
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| 22/06/2010 4:31 PM | | |
PRACTICE AND PROCEDURE – Application for leave to commence a proceeding – Order in place restricting right to commence a proceeding – Leave refused – Insufficient material put to the Court to make out claim
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| Link to announcement: Re Maryvell Investments Pty Ltd (in liq) [2010] VSC 278 |
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| 22/06/2010 4:30 PM | | |
PRACTICE AND PROCEDURE — Applications — Interlocutory injunction – Serious question to be tried - Balance of convenience – Sufficiency of evidence
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| Link to announcement: Ambridge Investments Pty Ltd (in liq) (rec appt'd) v Baker & Ors [2010] VSC 282 |
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| 21/06/2010 4:00 PM | | |
PRACTICE AND PROCEDURE – Application to strike out pleading as embarrassing and vexatious – Application to amend pleading to allege a crime as litigation misconduct.
COSTS – Application for costs of application for costs of application for leave to amend statement of claim. |
| Link to announcement: Bufalo Corporation Pty Ltd (Rec & man app'td) (in liq) v Lendlease Primelife Corporation Limited & Ors (No 4) [2010] VSC 264 |
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| 21/06/2010 3:39 PM | | |
INCOME TAX ― Conclusiveness of assessment ― Assessment based on deemed dividend provisions of tax laws ― Whether assessment based on provisional or tentative facts ― Whether jurisdictional error present ― Validity of assessment
CONTRACT ― Time stipulation for performance of action ― Time not expressed to be of the essence ― Non performance within time despite repeated requests ― Final request made with threat of termination of contract for non compliance ― Creation of essentiality ― Entitlement to terminate for breach
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| Link to announcement: Deputy Commissioner of Taxation v Haritos [2010] VSC 275 |
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| 21/06/2010 1:30 PM | | |
STRATA TITLES – whether agreement is a “caretaker agreement” – power to make by-laws – validity of by-laws – by-laws and necessary degree of connection. CONTRACTS – illegal and void contracts – whether grant of rights was illegal because party did not hold licence as required by statute – whether contract void or unenforceable because of illegality – impermissible delegation of the owners corporation’s functions. PRACTICE AND PROCEDURE – discretionary grounds for granting declaratory relief – Court’s obligation to deal with issues before it in light of s 56 of the Civil Procedure Act 2005 (NSW). |
| Link to announcement: Santai v The Owners - Strata Plan No. 77971 [2010] NSWSC 628 |
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| 21/06/2010 1:29 PM | | |
STATUTES – Therapeutic Goods Act – civil penalty proceeding – respondents found to have supplied and manufactured or aided and abetted in the supply and manufacture of counterfeit therapeutic goods and goods that have not been registered pursuant to Therapeutic Goods Act – pecuniary penalties imposed – declarations of contravention made
EVIDENCE – agreed statement of facts – effect of section 191 Evidence Act
CORPORATIONS – applicant granted leave to proceed against company in liquidation on the condition that the applicant does not enforce an order for the payment of money by that respondent
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| Link to announcement: Secretary, Department of Health and Ageing v Prime Nature Prize Pty Ltd (in liquidation) [2010] FCA 597 |
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| 21/06/2010 1:27 PM | | |
CORPORATIONS – Insolvency – Winding up – Voidable transaction – Insolvent transaction – Unfair preference – Doctrine of ultimate effect – Whether proof of unfair preference dependent on ‘ultimate effect’ of ‘entire transaction’ – Whether payments of mining lease rent and royalties unfair preferences – VR Dye & Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60; [1999] 3 VR 201, Beveridge v Whitton [2001] NSWCA 6, followed: Sheldrake v Paltoglou [2006) QCA 52, doubted – Corporations Act 2001 (Cth), s 588FA. |
| Link to announcement: McKern & Ors v The Minister administering the Mining Act 1978 (WA) [2010] VSCA 140 |
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| 21/06/2010 1:24 PM | | |
NEGLIGENCE – Vicarious liability of employer for unlawful assault by fellow employee upon co-worker – Scope of employment – Lepore v State of New South Wales considered - No direct liability in negligence – No vicarious liability for employee’s actions – Employee’s actions not sufficiently connected to duties of employment – Whether employee’s actions were in furtherance of employer’s interests.
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| Link to announcement: Blake v J R Perry Nominees Pty Ltd [2010] VSC 272 |
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| 18/06/2010 3:30 PM | | |
VALUATION AND COMPENSATION – Hypothetical highest and best use in ‘before’ situation – Effect of Bypass proposal to be disregarded – Strategic planning considerations – Factors supporting residential rezoning – Subregional growth area proposal inconsistent with extractive use zoning and strategic importance of limestone resource – Legacy site case – Whether topography is a natural barrier to rezoning – Whether extractive use zone is a bar to rezoning – Whether ‘infill’ development – Whether a need for rezoning – Good prospect of residential rezoning at the relevant date subject to a risk as to uncertainty – Land Acquisition and Compensation Act 1986, ss 41(3), 43(1) |
| Link to announcement: Roads Corporation v Carter & Anor [2010] VSC 273 |
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| 18/06/2010 2:38 PM | | |
CLAIM FOR EXECUTORS COMMISSION – Costs – General rule – Impact of Calderbank offers. |
| Link to announcement: Re Estate of Zsusanna Gray (No 2) [2010] VSC 269 |
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| 18/06/2010 2:37 PM | | |
CORPORATIONS – Insolvency – Winding up – Voidable transaction – Insolvent transaction – Unfair preference – Doctrine of ultimate effect – Whether proof of unfair preference dependent on ‘ultimate effect’ of ‘entire transaction’ – Whether payments of mining lease rent and royalties unfair preferences – VR Dye & Co v Peninsula Hotels Pty Ltd (in liq) [1999] VSCA 60; [1999] 3 VR 201, Beveridge v Whitton [2001] NSWCA 6, followed: Sheldrake v Paltoglou [2006) QCA 52, doubted – Corporations Act 2001 (Cth), s 588FA. |
| Link to announcement: McKern & Ors v The Minister administering the Mining Act 1978 (WA) [2010] VSCA 140 |
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| 18/06/2010 10:34 AM | | |
CORPORATIONS – Statutory demand – Appeal from order of Associate Judge setting aside statutory demand – Whether genuine dispute established – Appeal allowed – Sections 459G(1), 459H Corporations Act 2001. |
| Link to announcement: Freestyle Energy Limited v Renewtek Pty Ltd [2010] VSC 244 |
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| 18/06/2010 10:33 AM | | |
CATCHWORDS: PRACTICE AND PROCEDURE - Whether leave to appeal should be granted from orders of Associate Judge dismissing application for joinder of further plaintiff and staying paragraphs of further amended statement of claim – whether decisions attended with sufficient doubt – whether substantial injustice if decisions not reversed
PRACTICE AND PROCEDURE – application for joinder of New Zealand company seeking to sue in Victoria in respect of New Zealand claims – defendant resident in Victoria - whether forum inappropriate – availability of relief in New Zealand – existing proceedings in New Zealand and Victoria
PRACTICE AND PROCEDURE – declaration – utility when no damages to be recovered
CORPORATIONS – shareholder – whether shareholder can sue for loss where separate duty owed to it – whether loss is a reflective loss suffered by the company |
| Link to announcement: Groeneveld Australia Pty Ltd & Ors v Nolten & Ors [2010] VSC 249 |
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| 18/06/2010 10:32 AM | | |
CORPORATIONS – urgent declarations sought in relation to the winding up and the appointment of liquidators of the company – public examination of the directors of the company to take place – director of company questioned validity of appointment of liquidators |
| Link to announcement: Fletcher, in the matter of McLaughlins Financial Services Limited (In Liquidation) (ACN 088 647 796) [2010] FCA 606 |
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