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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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