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| 12/03/2010 4:35 PM | | |
PRACTICE AND PROCEDURE – Whether primary judge erred in dismissing application to stay, or strike out, amended counterclaim – Whether primary judge erred in refusing separate trial of claims made against third party in amended counterclaim – Decisions interlocutory – Whether attended by sufficient doubt to warrant grant of leave to appeal – Leave to appeal refused. |
| Link to announcement: E A Negri Pty Ltd v Technip Oceania Pty Ltd [2010] VSCA 44 |
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| 12/03/2010 10:43 AM | | |
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| Link to announcement: Legal Employment Consulting & Training Pty Ltd v Patterson & Anor [2010] NSWSC 130 |
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| 12/03/2010 10:43 AM | | |
CORPORATIONS – EQUITY – INTERLOCUTORY INJUNCTIONS – Whether there is a serious question to be tried – whether balance of convenience favours preserving the status quo until final determination if granting the injunction may permit the carrying on of an insolvent business.
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| Link to announcement: Branalex Debstina Pty Ltd v Rossmore Mushrooms Pty Ltd & Ors [2010] NSWSC 146 |
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| 12/03/2010 10:41 AM | | |
CORPORATIONS oppression proceedings alleged failure to carry out arrangements for separation of businesses no grounds under Part 2F.1 shown just and equitable ground of winding up where company is commercially viable |
| Link to announcement: Tomanovic v Argyle HQ Pty Ltd; Tomanovic v Global Mortgage Equity Corporation Pty Ltd; Sayer v Tomanovic [2010] NSWSC 152 |
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| 12/03/2010 10:40 AM | | |
COSTS – Application to set aside Statutory Demand – whether defendant should bear the costs of the proceedings after withdrawing original Statutory Demand. |
| Link to announcement: Global Mortgage Equity Corporation Pty Ltd v GBW Nominees Pty Ltd [2010] NSWSC 153 |
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| 12/03/2010 10:38 AM | | |
CORPORATIONS – COSTS – Application to set aside Statutory Demand – whether Defendant creditor should bear costs on the indemnity basis when put on notice of fatal flaw in creditor’s Statutory Demand.
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| Link to announcement: Challenger Managed Investments Limited v Owners Corporation SP66609 [2010] NSWSC 157 |
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| 12/03/2010 10:37 AM | | |
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – IN GENERAL – where application made for leave to apply under s 22 Succession Act 1981 (Qld) for an order under s 21 of that Act for a Court authorised will – where applicant is mother of proposed testator – where proposed testator had no prior will – where proposed testator had sustained permanent brain injury in a motor vehicle accident and lacks testamentary capacity – whether leave to apply for an order under s 21 should be granted – whether appropriate to authorise the will for the proposed testator – whether the costs of the application should be paid out of the assets of the proposed testator
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| Link to announcement: Octaviar Ltd (No 8), Re [2010] QCA 45 |
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| 12/03/2010 10:36 AM | | |
CORPORATIONS - winding up - insolvency - application for review of winding up order - motion for approval nunc pro tunc for director to bring application in name of company - winding up order made by Registrar - nature of review proceedings - presumption of insolvency - court approval of director bringing application for review - whether necessary - criteria for review - relevant considerations |
| Link to announcement: Deputy Commissioner of Taxation v Soiland Pty Ltd (In Liq) [2010] FCA 168 |
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| 12/03/2010 10:35 AM | | |
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| Link to announcement: Octaviar Investment Holdings No. 2 Pty Ltd (In Liquidation) ACN 108 248 737 [2010] FCA 184 |
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| 12/03/2010 10:34 AM | | |
CORPORATIONS – whether the period to convene the second meeting of creditors should be extended pursuant to s 439A of the Corporations Act – whether the liability of administrators should be limited. |
| Link to announcement: Vision (Brisbane) Pty Limited (ACN 106 860 664) (Administrators Appointed) in the matter of Vision (Brisbane) Pty Limited (ACN 106 860 664) (Administrators Appointed) [2010] FCA 186 |
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| 12/03/2010 10:33 AM | | |
CORPORATIONS – directors’ duties – whether any reasonable person exercising the powers and discharging the duties as a director of the corporation would have authorised or directed the payment to be made CONTRACTS – provision in contract entitling second appellant to bonus payment subject to conditions – proper construction of bonus provision |
| Link to announcement: Ralph v Diakyne Pty Ltd (ACN 099 168 402) [2010] FCAFC 18 |
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| 12/03/2010 10:30 AM | | |
Contract - Partnership agreements - Option to require transfer of assets by one partner to the other - Principles of construction of terms of commercial agreements - Admissibility of evidence of circumstances leading up to and after the date of agreement
Contract - Implication of terms as opposed to inference of terms - The implication of a term requiring the defendant to do all reasonably necessary to secure to the plaintiff the benefit of the option - The option is properly so described - It is not unenforceable because uncertain
Contract - Discharge - Abandonment - General principles - Estoppel as an alternative doctrine - The law as to estoppel by convention
Contract - Enforceability - Legal principle in respect of illegality of contracts discussed - Whether agreement illegal in performance of option because of consents required
Contract - Exercise of option - Effect of rule against perpetuities under Property Law Act 1969 (WA), s 110 - Notice of exercise not stamped until after writ and statement of claim filed - Effect of Stamp Act 1921 (WA), s 27
Contract - Remedies for breach - Equitable remedies - Plaintiff not to be denied relief on ground of unclean hands doctrine - Availability of specific performance and form of orders discussed
Equity - Legal principles in respect of equitable estoppel discussed - On the facts found the defence is not made out
Equity - Unconscionability - Availability when contract unenforceable, or void for illegality - General principles discussed - Necessity to rely on accepted equitable principles to establish unconscionability - Cause of action not maintainable when effect would be to circumvent application of rules of law
Equity - Breach of fiduciary duty as between partners - Relationship to contractual obligations
Trade practices - Breach of Trade Practices Act 1974 (Cth), s 52 - General principles discussed - Action not timebarred
Limitation of action - Plaintiff's equitable claim against defendant as a constructive trustee - Claim for the recovery of 'land' - Claim is not for an interest in possession - Claims by defendant for breach of fiduciary duty and breach of contract - Provisions of Limitation Act 1935 (WA) construed
Damage - Equitable damages - Claim for loss of opportunity to acquire interest in land - Principles governing assessment of expectation damages discussed |
| Link to announcement: WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 9] [2010] WASC 44 |
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| 12/03/2010 10:25 AM | | |
CONTRACT – joint venture agreement – expert determinations under terms of contract – whether expert determinations binding on the parties – whether expert has an obligation to accord procedural fairness– effect of mistake on the part of the expert –– scope of guarantee under the contract – EQUITY – declaration as a discretionary remedy – RESTITUTION – total failure of consideration – recovery of contributions to a joint venture where joint venture agreement does not contemplate events which have occurred |
| Link to announcement: John Nelson Developments Pty Limited v Focus National Developments Pty Limited [2010] NSWSC 150 |
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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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