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| 10/03/2010 5:35 PM | | |
Mr Graeme Hoy a former director of Chartwell Enterprises Pty Ltd (Chartwell), was today committed to stand trial on a date to be fixed in the Supreme Court of Victoria on charges brought by ASIC.
In August 2009, Mr Hoy was charged with the following offences (refer AD09-139):
- Carrying on a financial services business without a financial services license (2 counts);
- Obtaining a financial advantage by deception (148 counts) and obtaining property by deception (32 counts). These 180 counts collectively relate to obtaining advantage of approximately $22 million from investors;
- Dishonest conduct (41 counts); and
- Dishonest use of position in the company (1 count).
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| Link to announcement: Link to Announcement |
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| 10/03/2010 1:59 PM | | |
Damages – Assessment – Remoteness – Usual undertaking as to damages – Supreme Court Rules 1970 (NSW) ("the Rules") – Respondent gave usual undertaking as to damages to court pending application for special leave to appeal to High Court – Court ordered money to which appellant otherwise entitled be paid into court in United States dollars – Appellant would have converted money from United States dollars to euros but for the order – Nature of "usual undertaking as to damages" in Pt 28 r 7(2) of the Rules – Relevance of contractual remoteness principles in Hadley v Baxendale (1854) 9 Exch 341 [156 ER 145] – Equitable origin of usual undertaking as to damages in Pt 28 r 7(2) of the Rules – What is "just and equitable" or "fair and reasonable" in the circumstances – Whether loss of preferential movement in exchange rates and interest flowed directly from order – Whether kind of loss could have been foreseen by respondent. |
| Link to announcement: European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6 |
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| 9/03/2010 12:38 PM | | |
Appeal under s 148 Victorian Civil and Administrative tribunal Act 1998 (‘the Act’) – Offer of settlement – Whether the offer an offer which met description in s 112(1) of the Act – Whether offer validly accepted – Whether Tribunal has power under s 114(3) of the Act to grant permission to withdraw an offer after the offer has been accepted – Whether power to permit withdrawal nunc pro tunc – Circumstances justifying permission to withdraw offer.
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| Link to announcement: Velardo & Anor v Andonov [2010] VSCA 38 |
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| 9/03/2010 10:17 AM | | |
EQUITY – trusts and trustees – charitable trusts – schemes – administrative scheme – where plaintiff holds property upon constructive charitable trust and no trust instrument – where plaintiff seeks an order that the trust be administered in accordance with an administrative scheme – whether purposes of remain charitable – where scheme will facilitate commercial dealings of trustee and permit winding up of trust and transfer of assets to corporation for same charitable purposes - held: trust to be administered in accordance with administrative scheme.
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| Link to announcement: College of Law Pty Ltd v Attorney General of NSW [2009] NSWSC 1474 |
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| 9/03/2010 10:16 AM | | |
TORTS – Negligence – Product Liability – Prescription medicine for relief of inflammation – Side-effects – Whether medicine caused or contributed to cardiovascular disease – Whether manufacturers knew or ought to have known of that tendency – Whether they owed duty of care to consumers – Content of duty of care – Whether affected by status of product as prescription medicine – State of scientific uncertainty as to side-effects of medicine – Whether manufacturers undertook sufficient research into side-effects – Whether medicine should have been withdrawn from market pending resolution of scientific issues – Whether manufacturers breached duty of care by not doing so.
TRADE PRACTICES – Misleading or deceptive conduct – Prescription medicine for relief of inflammation associated with doubling of risk of heart attack – No warning provided to doctors – “Product Information” for medicine not referring to increased risk – Whether misleading or deceptive conduct on part of corporation marketing the medicine – Sales representatives of corporation claiming medicine safe – Whether misleading or deceptive – Medicine contributed to applicant’s heart attack – Whether applicant’s doctor relied on conduct of corporation – Whether he would have prescribed medicine in any event. |
| Link to announcement: Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180 |
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| 9/03/2010 10:14 AM | | |
Corporations - Application to set aside - Statutory demand - Application out of time - Other proceedings in respect of demand |
| Link to announcement: 2020 CONSTRUCTION SYSTEMS PTY LTD -v- DRYKA & ASSOCIATES PTY LTD [2010] WASC 31 |
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| 9/03/2010 10:11 AM | | |
Corporations – Legal capacity and relations with outsiders – External litigation procedure – Costs – Security for costs – Jurisdiction – Reason to believe plaintiff unable to pay defendant’s costs – Effect of delay in applying – Security only for costs not yet incurred
Corporations – Legal capacity and relations with outsiders – External litigation procedure – Costs – Security for costs – Other matters – Application for further security – Further application for further security is not a variation of existing orders
Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262, cited
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| Link to announcement: Ransard Pty Ltd v. MM Holdings (No 2) Pty Ltd [2009] QSC 438 |
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| 9/03/2010 10:09 AM | | |
CONTRACTS – general principles – non est factum – party seeking to set aside contract with intellectual disability – no necessary inconsistency in the pleas of non est factum and incapacity – operation of the plea of non est factum concerns the true consent of the signer – no signature if the relevant mental incapacity prevents any understanding at all of the document CONTRACTS – general principles – non est factum – requirement of no negligence by the signer relying on the plea – relevant standard of enquiry - lack of reasonableness of a person in the position of the signer CONTRACTS – Contracts Review Act 1980 (NSW) – statute does not apply when no contract formed in law – statute does not apply when contract found void on basis of plea of non est factum CONTRACTS – Contracts Review Act 1980 (NSW) – s 7 relief – orders in favour of party with a disability in circumstances where other party did not know of disability – relief can be granted – order would be made to vary loan and mortgage if statute was held to apply CONTRACTS – Contracts Review Act 1980 (NSW) – s 6(2) – “carried on by or proposed to be carried on by” –meaning - matter of substance not form WORDS AND PHRASES – “carried on by or proposed to be carried on by” RESTITUTION - mistake: restitution arising from a plaintiff's mistaken actions - recovery of money paid under mistake – recovery of funds paid under a loan and mortgage later held to be void - right to recovery prima face enlivened – injustice of the retention of the money or benefit – receipt and benefit matter of substance not form – whether funds received and retained – conduct of lender relevant in circumstances of this case – non est factum and restitution - conformity of legal principle – party not liable in restitution to repay funds where loan contract found void and party did not in substance receive benefit from the funds |
| Link to announcement: Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186 |
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| 9/03/2010 10:06 AM | | |
TRUSTS – Extent of trustee’s right of indemnity – Whether it included interest agreed by former trustee to be paid on outstanding debt to third party – Whether vesting order with respect to real property should be made before former trustee’s right of indemnity satisfied – Costs of the proceeding – Whether successful plaintiffs should be deprived of costs of some issues – Trustee Act 1958, ss.45, 51, 58; Transfer of Land Act 1958, s.58.
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| Link to announcement: Rosenberg & Anor v Fifteenth Eestin Nominees Pty Ltd & Ors (No 2) [2010] VSC 38 |
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| 9/03/2010 10:05 AM | | |
CORPORATIONS – Application by liquidators for judicial advice and directions – Managed investment schemes – Responsible entity in liquidation – Sale of land on which citrus schemes conducted – Sale to be completed unencumbered by Growers’ rights to use and enjoy the land – Scheme constitution amended to include the power in the responsible entity to terminate the Growers’ licenses with respect to the use of the land – Whether liquidators justified in procuring the extinguishment of Growers’ rights – Net proceeds to be held on trust pending determination of persons entitled to receive the proceeds – S 511 of the Corporations Act 2001 (Cth).
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| Link to announcement: Re Timbercorp Securities Limited (in liq) [2010] VSC 50 |
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| 9/03/2010 10:04 AM | | |
TRUSTS AND TRUSTEES – joint venture – sale of joint venture project to one joint venturer – monies lodged as security with electricity supply company – whether monies provided by joint venture vehicle to enable the project vehicle to provide security were monies held on trust for joint venture vehicle or as debt owing to joint venture vehicle
LEGAL PRACTITIONERS – solicitors – monies held by solicitor for client company disbursed upon direction – whether solicitor in breach of trust – whether first defendant caused breach of trust
CONTRACT – contract for sale of joint venture project – term that vendor would fund certain capital works not exceeding $4.7million – whether limit exceeded – first defendant director of vendor company – whether first defendant in breach of directorial or fiduciary duties in incurring excess expenditure |
| Link to announcement: Australian Super Developments Pty Ltd & Ors v Marriner & Ors [2010] VSC 41 |
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| 9/03/2010 10:03 AM | | |
CONTRACT – Family business - Alleged oral agreements between father and son – Whether any intention to enter into a legally binding contract - Whether any exchange of promises – Implied contract - Whether exercise of trustee powers subject to oral agreement – Whether father agreed to increase son’s allocation under the family trust – Whether father agreed to transfer superannuation assets to family trust upon his retirement or death – Whether agreement not to sell major asset of business until 2056 - Whether agreement that units and shares would be held by family companies on behalf of the son. |
| Link to announcement: Robertson v Robertson & Ors [2010] VSC 54 |
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| 5/03/2010 1:04 PM | | |
ARBITRATION – Application for stay of court proceedings – Construction of arbitration agreement – Meaning of ‘urgent interlocutory or declaratory relief’ – Enforcement of declarations made by arbitrators – Claim not urgent – Waiver – International Arbitration Act 1974 (Cth). |
| Link to announcement: AED Oil Limited & Anor v Puffin FPSO Limited [2010] VSCA 37 |
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| 5/03/2010 1:02 PM | | |
CORPORATIONS – schemes of arrangement – deregistration without winding up – doctrine of universal succession |
| Link to announcement: Westpac Banking Corporation (ACN 007 457 141), in the matter of St George Bank Limited (ACN 055 513 070) [2010] FCA 148 |
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| 4/03/2010 6:38 PM | | |
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| Link to announcement: Supreme Court List for Friday, 05 March 2010 |
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| 2/03/2010 3:27 PM | | |
CONTRACT – construction of director’s Deed of Indemnity – construction of the corporate Constitution of a trustee of an industry superannuation fund – contractual indemnities held to cover legal costs incurred by a director in defending a claim made by the trustee against him for breach of s 181(a) of the Corporations Act 2001 (Cth) in circumstances where the trustee discontinued its claim with the leave of the Court |
| Link to announcement: Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16 |
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| 2/03/2010 3:02 PM | | |
Mrs Hazel Bernice Bucello yesterday pleaded guilty in the Melbourne County Court to six counts of deception, following an investigation by ASIC. Mrs Bucello was the sole director of loan and mortgage broking business Victorian Finance Broking Services Pty Ltd (VFBS), which was based in Kew, Victoria. |
| Link to announcement: 10-38AD Ponzi scheme operator pleads guilty to ASIC charges |
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| 2/03/2010 1:28 PM | | |
Equity
Interlocutory injunctions
Principles
Banking law
Borrower seeks to restrain Lending Bank from appointing receiver
Bank's powers under transactional documents
Guarantees
Whether there was anything unconventional, unconscionable, unfair or unjust in any of the terms in the security documents
To sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document
The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents
Good faith
Bank mortgages traditionally drawn to cover multitude of possible situations and intended to secure the bank as effectively as possible |
| Link to announcement: Brighten Pty Limited & Ors v Bank of Western Australia Limited & Anor [2010] NSWSC 133 |
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| 2/03/2010 10:20 AM | | |
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS - EFFECT OF ILLEGALITY OR INVALIDITY CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - SETTLEMENT OF DISPUTES Contract containing clauses dealing with the procedure to resolve disputes between the parties - whether expert determination purporting to be made pursuant to the dispute resolution procedure is enforceable - whether dispute resolution clause void for uncertainty. |
| Link to announcement: HARDESTY & HANOVER INTERNATIONAL LLC & ORS v ABIGROUP CONTRACTORS PTY LTD [2010] SASC 44 |
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| 2/03/2010 10:05 AM | | |
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OTHER CASES CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS SALE OF GOODS - REMEDIES FOR BREACH OF CONTRACT - MEASURE OF DAMAGES - OTHER CASES DAMAGES - GENERAL PRINCIPLES - OTHER MATTERS Respondent contracted with appellants to build a mobile health unit on to the tray of a truck provided by respondent - when constructed, combined weight of tray and unit over legal limit permitted for driving on public roads - District Court Judge held that appellants liable to pay damages for breach of duty of care, breach of contract and pursuant to Sale of Goods Act 1895 (SA) - Judge rejected claims for misrepresentation, breach of Trade Practices Act and breach of Fair Trading Act - Judge rejected appellants' claims for contribution or apportionment - damages assessed at $55,297.67 - appellant appealed against all liability claiming respondent guilty of contributory negligence and suffered no loss or damage - respondent cross-appealed contending damages award inadequate and seeking an amount of $29,118.00 for difference between cost of new truck and purchase price of initial truck - whether liability made out - whether respondent guilty of contributory negligence - whether respondent suffered any loss or damage - whether claims under Trade Practices Act and Fair Trading Act made out - whether damages award inadequate - consideration of betterment. Held: Appellants' appeal dismissed - loss suffered by respondent caused by appellants' breach of duty, breach of contract and breach of statute - no contributory negligence - findings on Trade Practices Act and Fair Trading Act not disturbed - cross-appeal allowed - damages increased by an amount of $29,118.00 - betterment not made out. |
| Link to announcement: GWAM INVESTMENTS PTY LTD & ORS v OUTBACK HEALTH SCREENINGS PTY LTD [2010] SASC 37 |
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| 26/02/2010 4:24 PM | | |
TAXES AND DUTIES – Pt 10 Taxation Administration Act 1997 (Vic) – Application of relevant law – Executive branch of government – Administration of justice – Indemnity costs.
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| Link to announcement: Urban Consolidation and Development Pty Ltd & Ors v Commissioner of State Revenue [2010] VSC 049 |
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