Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419 (21 July 2017): setting aside statutory demand, Graywinter affidavit, genuine dispute

July 26, 2017

The Supreme Court, per Randall AsJ, considered an application to set aside a statutory demand in Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419. The key issue was whether issues ultimately relied upon were raised in the Plaintiff’s initial affidavit, filed within 21 days of the statutory demand being served and the scope and operation of Graywinter affidavits.

FACTS

The debt relied upon in the statutory demand Read the rest of this entry »

Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 (7 July 2017): power to make a substitution order, exercise of discretion, Rule 9.09 of the Civil Procedure Rules

July 23, 2017

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »

Sheales v The Age & Ors [2017] VSC 380 (29 June 2017): defamation, damages where reputation not put in issue, mitigating and aggravating factors

July 6, 2017

After a 6 day trial a jury found for the plaintiff in the defamation proceeding of Sheales v The Age & Ors [2017] VSC 380.  The Court awarded damages in the sum of $175,000.  The current maximum amount awardable for non-economic loss is $381,000.

FACTS

The Plaintiff, Sheales, is a Victorian barrister practicing mainly in criminal law and sports law. The Third Defendant, Patrick Bartley, was a journalist who wrote an article about the Plaintiff’s appearance before a Racing Victoria stewards hearing on 2 August 2015. An issue before the steward’s hearing that day concerned the alleged use of the chemical element cobalt by the plaintiff’s clients [1]. Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, published the article online. The first defendant, The Age Company Pty Ltd, the owner and publisher of The Age newspaper, published the article, with some small differences on 3 August 2015 [2].

The Plaintiff alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or Read the rest of this entry »

McDonald v Dods [2017] VSCA 129 (2 June 2017): Defamation, inference of publication on the internet, damages

June 11, 2017

In McDonald v Dods [2017] VSCA 129 the Victorian Court of Appeal considered the issue of inference of publication to unknown individuals who may have read a blog post.

It is an appeal from judgments of Bell J inDods v McDonald (No 1) [2016] VSC 200 (6 May 2016) and Dods v McDonald (No 2) [2016] VSC 201 (6 May 2016).

FACTS

The applicant, McDonald, was the administrator and author of the website ‘www.justice4tylercassidyjust15.com’ (the “website”) from December 2008 to October 2012 where he discussed the death of Tyler Cassidy by police shooting [3]. The respondent Read the rest of this entry »

Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute

June 5, 2017

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.

FACTS

Medusa claimed Read the rest of this entry »

Peter Exton & Anor v Extons Pty Ltd & Ors [2017] VSC 14 (10 February 2017): Oppressio and deadlincok sections 233 and 461(1)(k) and 467(4) of the Corporations Act 2001)

February 14, 2017

The Supreme Court, per Sifris  J, heard an application under sections 233 and 461(1)(k) of the Corporations Act 2001 in  Peter Exton & Anor v Extons Pty Ltd & Ors [2017] VSC 14.

FACTS

Many oppression proceedings in the Corporations List involve family run companies.  Exton v Extons Pty Ltd is not unusual in this regard.  The First Plaintiff,  Peter, and the Sixth Defendant, Ian, are brothers. They each hold, either directly or indirectly, 50% of the shares in each of the companies that made up the Extons group. They are also directors of those companies [1].

The Extons group was commenced by Peter and Ian’s father and uncle in the 1950s, when it was started . It engages in earthworks, excavating and contracting in New South Wales and Victoria and occasionally sells machines including machines that it holds for the purposes of its contracting work [2].

Peter started Read the rest of this entry »

Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12 (19 January 2017): application to set aside staututory demand, section 459G Corporations Act

February 5, 2017

In Gucce Holdings Pty Ltd v Bank of Queensland Limited [2017] FCA 12  the Federal Court considered whether a sale for undervalue, or at least a claim as such, was a basis for an offsetting claim (and what is required) as well as whether a special leave application was sufficient to set aside a statutory demand.

FACTS

Gucce Holdings Pty Ltd (ACN 099 191 714) filed an application, [1], with an  affidavit of  Tina Michelle Bazzo, director of Gucce,[2], on 29 December 2015 pursuant to s 459G of the Corporations Act 2001to set aside a statutory demand made by the Bank of Queensland Limited.

Bazzo stated that Read the rest of this entry »

Hera Project Pty Ltd v Bisognin & Anor [2016] VSC 591 (3 October 2016); prohibitive and mandatory injunctive relief, defence of hardship, undertaking as to damages

October 16, 2016

Applications for injunctive relief are not uncommon in the commercial division of the superior courts.  In Hera Project Pty Ltd v Bisognin & Anor [2016] VSC 591 Justice McCaulay considered an application arising relating to a contract of sale of land.

FACTS

His Honour described the events leading up to this application was Read the rest of this entry »

Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited [2016] VSC 570 (21 September 2016): application to stet aside statutory demand, section 459, Corporations Act

September 23, 2016

The Supreme Court in Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited [2016] VSC 570 considered a statutory demand where a key issue was the effect of settlement of group proceedings acting as a bar to a claim of a genuine dispute to a statutory demand.

FACTS

In July 2006 the applicant, Pekell Delaire Holdings Pty Ltd (“PDH”)  applied to Great Southern Plantation Projects for two grove lots in the Great Southern Organic Olives Income Project and  four vine lots in the Great Southern Wine Grape Income Project with associated applications for term finance. Finance was approved and funds were advanced on the basis of repayment in seven years of principal and interest. The loans were subsequently assigned and ultimately transferred to Bendigo [6] Read the rest of this entry »

Furnari v Ziegert [2016] FCA 1080 (2 September 2016): Telecommunications (Interception and Access) Act 1979, private communications, injunctive relief, defamation

September 18, 2016

The Federal Court per Murphy J in Furnari v Ziegert [2016] FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action.  The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).

FACTS

The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg.  Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail.  Not surprisingly the applicant alleged misrepresentations by the respondents [7] which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal  [8].

The dispute escalated into a defamation proceeding. His Honour summarised the circumstances  as: Read the rest of this entry »