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| 25/01/2012 12:19 PM | | |
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.
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| Link to announcement: North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1 (19 January 2012) |
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| 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) |
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| 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
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| Link to announcement: Sharp v Cossack Pearls Pty Ltd [2011] FCA 1477 (20 December 2011) |
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| 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)
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| Link to announcement: Keswick Developments Pty Ltd & Anor v Keswick Island Pty Ltd & Ors [2011] QCA 379 (20 December 2011) |
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| 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) |
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| 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.]
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| Link to announcement: Konstantopoulos v R & M Beechey Carriers Pty Ltd [2011] NSWCA 388 (15 December 2011) |
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| 12/01/2012 1:18 PM | | |
CONTRACT - appellants alleged that oral agreement was made immediately prior to parties entering into written letter agreement - oral agreement contradicted terms of written letter agreement in relevant respects - whether possible for earlier oral agreement to vary subsequent written agreement - whether agreement between the parties was partly oral and partly in writing |
| Link to announcement: Skyrise Consultants Pty Ltd v Metroland Funds Management Ltd [2011] NSWCA 406 (12 December 2011) |
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| 12/01/2012 1:17 PM | | |
Contract - Restraint of trade - Clause in restraint of trade - Construction - Restraining party must have legitimate interest to protect - Reasonableness of restraint - Duration of restraint - Alleged breach of restraint - Turns on own facts Tort - Interference in contractual relations - Inducement to commit breach of contract - Relevant principles - Turns on own facts
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| Link to announcement: JADDCAL PTY LTD -v- MINSON [No 3] [2011] WASC 362 (23 December 2011) |
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| 12/01/2012 1:15 PM | | |
Contract - Settlement of action - Deed - Summary enforcement by court in original action - Alleged counterclaim - Assertion of set-off - No basis for equitable set-off
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| Link to announcement: FORRESTER -v- CLARKE [2012] WASC 3 (6 January 2012) |
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| 12/01/2012 1:13 PM | | |
(1) The judgment of her Honour Madgwick LCM dated 26 April 2010 is varied to the extent that the defendant is to pay the plaintiff an additional $1,100, such that total damages payable are $12,100. (2) The second further amended summons dated 9 June 2011 is otherwise dismissed. (3) The cross appeal is dismissed. (4) Costs are reserved. |
| Link to announcement: Airloom Holdings Pty Ltd v Thales Australia Ltd [2011] NSWSC 1513 (14 December 2011) |
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