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Commercial Court > Pages > News  

 Recent News
3/02/2012 11:48 AM
VINCENT NOMINEES PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASC 28 (2 February 2012)Use SHIFT+ENTER to open the menu (new window).
Administrative law - Whether valuation by statutory board of valuers invalid on various grounds - Whether Wednesbury unreasonableness demonstrated

Contracts - Proper construction - Relevance of background matrix evidence

Town planning - Reservation of land for public purposes under Metropolitan Region Scheme - Compensation for injurious affection - Validity of payment of compensation - Whether amount of compensation must be determined by a third party or can be agreed by claimant and responsible authority - Whether agreement about compensation otherwise invalid

Statutory interpretation - Whether amount of compensation must be determined by a third party or can be agreed by claimant and responsible authority
Link to announcement: VINCENT NOMINEES PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASC 28 (2 February 2012)
Attachments:
3/02/2012 11:46 AM
Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 (30 January 2012) Use SHIFT+ENTER to open the menu (new window).
CONTRACT - identifying terms of contract - what terms were implied in the contract from the United Nations Convention on Contracts for the International Sale of Goods (CISG) - whether goods supplied were fit for purpose and of merchantable quality - whether implied warranty of fitness for purpose had been breached - whether circumstances of termination had any direct relevance to the quantification of damages - DAMAGES - contract - assessment of damages - whether direct losses were sustained - whether indemnity for compensation could be claimed - whether plaintiff could claim damages for loss of profit due to breach.
Link to announcement: Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 (30 January 2012)
Attachments:
3/02/2012 11:45 AM
White v Norman; In the Matter of Forest Enterprises Australia Limited (Receivers and Managers Appointed) (in Administration) [2012] FCA 33 (2 February 2012) Use SHIFT+ENTER to open the menu (new window).
CONTRACT – principles of repudiation of contract – whether end of plaintiff’s employment as chief executive officer amounted to termination under the contract or repudiation and acceptance of repudiation – whether failure to pay termination entitlements on date employment ceased constituted repudiation.

Held: The events constituted termination of the employment under the contract.

CORPORATIONS – Corporations Act – application of Div 2 Pt 2D.2 – scope of s 200F exceptions - where employment contract provided for payments of remuneration in lieu of termination notice – where plaintiff’s employment terminated without notice – whether benefits constituted benefits “in connection with” plaintiff’s retirement as contemplated by s 200A and required member approval in accordance with s 200E – whether benefits fell within s 200F(2)(a)(ii) exception – where plaintiff engaged under several employment contracts from 2003 to 2009 to hold position of chief executive officer – where benefits provided under 2009 contract – whether benefits provided as consideration for plaintiff agreeing to hold office for purpose of s 200F(2)(a)(ii) – construction of term “office” under s 200F(2)(a)(ii).

Held: The benefits were benefits “in connection with” the plaintiff’s loss of office for the purposes of Division 2 of Part 2D.2. The “consideration” referred to in s 200F(2)(a)(ii) is the consideration given by the company from time to time, and the benefits were consideration for the plaintiff holding office under the 2009 agreement. Payments of remuneration in lieu of notice within s 200F(2)(a)(ii).

CORPORATIONS – Corporations Act – construction of ss 433 and 556 of the Act - Where plaintiff’s employment ceased after appointment of receivers to company - whether plaintiff’s leave entitlements had priority under ss 433 and 556 of the Act.
Link to announcement: White v Norman; In the Matter of Forest Enterprises Australia Limited (Receivers and Managers Appointed) (in Administration) [2012] FCA 33 (2 February 2012)
Attachments:
30/01/2012 12:26 PM
Karingbal Traditional People Aboriginal Corporation v Santos GLNG Pty Ltd [2011] FCA 1456 (16 December 2011) Use SHIFT+ENTER to open the menu (new window).
CONTRACTS – application for declaration that certain obligations of a contract have been performed – contract an ancillary agreement to an Indigenous Land Use Agreement – consideration of joint and several obligations by multiple parties to contract – whether obligations to be performed by a native title claim group require performance by all members of that group – obligations are not cumulative such that performance by one is performance by all

Held – application granted
Link to announcement: Karingbal Traditional People Aboriginal Corporation v Santos GLNG Pty Ltd [2011] FCA 1456 (16 December 2011)
Attachments:
30/01/2012 12:24 PM
Holden v Van Houten [2012] FCA 4 (13 January 2012) Use SHIFT+ENTER to open the menu (new window).
BANKRUPTCY AND INSOLVENCY – Bankruptcy annulled – Trustee’s entitlement to costs, expenses and remuneration.
Link to announcement: Holden v Van Houten [2012] FCA 4 (13 January 2012)
Attachments:
30/01/2012 11:28 AM
KRAGULJAC v A & B PROPERTY DEVELOPMENTS PTY LTD (No 2) [2012] SASC 1 (13 January 2012) Use SHIFT+ENTER to open the menu (new window).

CONVEYANCING - COMPLETION OF CONTRACT - TIME FOR COMPLETION - TIME OF THE ESSENCE - BY NOTICE

CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - GENERALLY - CONDITIONS PRECEDENT AND SUBSEQUENT

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - CONDITIONS

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE

Link to announcement: KRAGULJAC v A & B PROPERTY DEVELOPMENTS PTY LTD (No 2) [2012] SASC 1 (13 January 2012)
Attachments:
30/01/2012 11:25 AM
TX Australia Pty Limited v Broadcast Australia Pty Limited [2012] NSWSC 4 (16 January 2012) Use SHIFT+ENTER to open the menu (new window).
CONTRACTS - Broadcasting and related industry contracts - plaintiff owner and operator of broadcast infrastructure - defendant has access to and use of plaintiff's infrastructure pursuant to contract - defendant exercises option to renew contract - contract provides for expert determination of licence fee if parties fail to reach agreement - expert charged with determining a reasonable fee having regard to rates charged to third parties at facility in question - term sheet determines that expert determination final and binding except if attended by manifest error or error of law - terms of contract direct task to be performed by expert and whether determination binding.
CONTRACTS - Plaintiff alleges error of law on basis expert misconceived function by adopting objective "market value" assessment to ascertain fee as opposed to a subjective "fair value" approach - function of expert determined by contractual provisions - contract provides for hybrid process requiring consideration of subjective and objective factors, with rates charged to third parties a mandatory consideration - contract requires appraisal akin to 'fair market value' - expert does not have regard to exclusively objective considerations and considers position of particular parties - expert did not misconceive function.
CONTRACTS - Plaintiff alleges error of law on basis expert failed to consider relevant factor - relevant consideration said to be 'special value' of contract to defendant - requirement for ascertainment of 'reasonable fee' refers to defendant as a willing but not anxious and involuntary purchaser - requirement for 'reasonable fee' antithetical to valuation proceeding on basis plaintiff a monopolist - expert did consider special value of contract to defendant.
CONTRACTS - Plaintiff alleges error of law on basis expert failed to give weight to current fees under original contract - expert had regard to such fees but concluded of limited relevance - not an error of law to weigh relevant factors in a particular way as opposed to not consider them - circumstances prevailing ten years previously when agreement first made materially different to present - fees agreed ten years previously not useful guide to what constitutes a 'reasonable fee'.
CONTRACTS - Plaintiff alleges error of law and manifest error on basis expert used incorrect comparator in assessing 'reasonable fee' - expert said to have incorrectly compared digital audio broadcasting with digital television broadcasting - audio broadcasting said to be inapposite comparator due to fact radio different medium to television with different cost factors - digital audio broadcasting fees considered by expert pertain to agreement between same parties and are relatively recent - errors in methodology employed by expert valuer not errors of law - matter of professional judgment as to weight to accord cost recovery and profit margin - expert evidence adduced in attempt to illustrate manifest error - fact such evidence needs to be adduced conveys error not manifest - expert did not make error of law or manifest error.
CONTRACTS - Plaintiff alleges expert failed to give detailed reasons - question whether reasons are 'reasons' within the meaning of the contract - failure to provide 'detailed reasons' entails there will not be a binding determination - due to requirement of 'detailed statement of reasons', provision of wider than usual scope to challenge binding nature of determination and fact issues are complex standard of reasons required by contract akin to that expected of judges and commercial arbitrators - expert sufficiently identifies methodology and provides sufficiently detailed and comprehensive reasons - reasons are 'detailed reasons' within meaning of contract.
CONTRACTS - Plaintiff alleges error of law on basis determination manifestly unreasonable - determination said to be unreasonable in Wednesbury sense because of relative magnitude of reduction in licence fee - contract requires new fee to be determined with predominate regard to market based considerations and cost considerations not prevailing when original fee determined - determination not so unreasonably low - determination rewards plaintiff above avoidable cost - arguable that perpetuating current fee would be unreasonable - determination not manifestly unreasonable
Link to announcement: TX Australia Pty Limited v Broadcast Australia Pty Limited [2012] NSWSC 4 (16 January 2012)
Attachments:
30/01/2012 11:01 AM
Trials Listed 30 January - 10 February 2012Use SHIFT+ENTER to open the menu (new window).
These matters are scheduled to begin on the stated dates.
Link to announcement: Trials Listed 30 January - 10 February 2012
Attachments:
25/01/2012 12:19 PM
North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 (19 January 2012) Use SHIFT+ENTER to open the menu (new window).
TRADE PRACTICES – consideration of the construction of s 51A of the Trade Practices Act 1974 (Cth) (now in an amended form as s 4 of the Australian Consumer Law, Schedule 2, to the Competition and Consumer Act 2010 (Cth)) – consideration of a challenge to the primary judge’s finding that the respondents had discharged the evidential burden under s 51A(2) of the Trade Practices Act and a challenge to the finding that the appellant had failed to discharge the persuasive onus under s 51A(1) of the Trade Practices Act – consideration of the evidential burden and the persuasive onus under s 51A in circumstances where a representation as to a future matter is shown to have come to pass, or not shown not to have come to pass.

CONSUMER LAW – consideration of the evidential burden arising under s 51A(2) of the Trade Practices Act and the persuasive onus arising under s 51A(1) of the Trade Practices Act.
Link to announcement: North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 (19 January 2012)
Attachments:

 Archive News
Little Images Pty Ltd v Fresh View Venture Pty Ltd & Ors [2011] QSC 402 (20 December 2011) Use SHIFT+ENTER to open the menu (new window).
12/01/2012 1:24 PM
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – WHAT AMOUNTS TO REPUDIATION – where the first defendant and the second and third defendants, as guarantors, entered into a franchise agreement with the plaintiff for the operation of a photography business – where the agreement was for a term of 5 years – where the defendants purported to terminate the agreement and continue their photography business under a new name – whether the plaintiff breached the agreement – whether the defendants were entitled to terminate the agreement – whether the defendants repudiated the agreement
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – STATEMENTS AS TO FUTURE MATTERS AND PROMISES – where the plaintiff made representations as to future matters – whether the plaintiff made misrepresentations to the defendants which induced them to enter into the franchise agreement
TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – RESTRAINTS OF TRADE – CONSTRUCTION OF AGREEMENTS – PARTICULAR AGREEMENTS – where the plaintiff seeks to restrain the defendants from continuing its photography business – whether the plaintiff should be granted an injunction
INTELLECTUAL PROPERTY – CONFIDENTIAL INFORMATION – INFORMATION PROTECTED – where the plaintiff argues the defendants used customer details as a ‘springboard’ – where the plaintiff argues the defendants used software it had developed – whether the software was confidential information
Link to announcement: Little Images Pty Ltd v Fresh View Venture Pty Ltd & Ors [2011] QSC 402 (20 December 2011)
Attachments:
Sharp v Cossack Pearls Pty Ltd [2011] FCA 1477 (20 December 2011) Use SHIFT+ENTER to open the menu (new window).
12/01/2012 1:23 PM
TRADE PRACTICES – pearling agreements – loan agreement - misleading and deceptive conduct alleged

CONTRACT – termination of pearling agreement – breach alleged – rectification sought
Link to announcement: Sharp v Cossack Pearls Pty Ltd [2011] FCA 1477 (20 December 2011)
Attachments:
Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd & Ors [2011] QCA 379 (20 December 2011)Use SHIFT+ENTER to open the menu (new window).
12/01/2012 1:22 PM
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – APPLICATION TO LEASES – where there was a sublease of Crown land between the first appellant as sub-lessor and the fourth respondent as sub-lessee – where the sublease was for a term of over 90 years with a nominal rent – where the sublease provided strong protection for the sub-lessee upon default – whether the first appellant was entitled to terminate the sublease for repudiation by the fourth respondent
REAL PROPERTY – CROWN LANDS – QUEENSLAND – GENERALLY – where the respondents submitted that subleases under the Land Act 1994 (Qld) are statutory interests and are not governed by common law doctrines – where the respondents argued on appeal that a clause in the sublease excluded the application of the common law doctrine of repudiation – where the arguments were not raised or were raised and abandoned at first instance – whether the respondents should be permitted to rely on arguments not relied on at first instance – whether the common law doctrine of repudiation is applicable to subleases of Crown land under the Land Act 1994 (Qld)
Land Act 1962-1981 (Qld) (repealed)
Link to announcement: Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd & Ors [2011] QCA 379 (20 December 2011)
Attachments:
New South Wales Crime Commission v Lee [2011] NSWCA 398 (5 December 2011) Use SHIFT+ENTER to open the menu (new window).
12/01/2012 1:20 PM
Proceedings adjourned to the Registrar's list on Monday 12 December 2011.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Link to announcement: New South Wales Crime Commission v Lee [2011] NSWCA 398 (5 December 2011)
Attachments:
Konstantopoulos v R & M Beechey Carriers Pty Ltd [2011] NSWCA 388 (15 December 2011) Use SHIFT+ENTER to open the menu (new window).
12/01/2012 1:19 PM
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Link to announcement: Konstantopoulos v R & M Beechey Carriers Pty Ltd [2011] NSWCA 388 (15 December 2011)
Attachments:
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