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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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