X v Twitter Inc [2017] NSWSC 1300 (28 September 2017): equity, injunction regarding tweets, confidential information, Norwich Orders.

October 29, 2017

In X v Twitter Inc [2017] NSWSC 1300 the Supreme Court of New South Wales, per Pembroke J, issued a final injunction regarding a post on Twitter. In doing so the Court considered in detail the scope and operation of injunctions on Twitter, a platform with much of its operations located outside Australia.

FACTS

Between 16 and 19 May the first offending tweets appeared [6] with the author of the tweets used a twitter handle that falsely adopted the name of the plaintiff’s CEO.

On 19 May, the plaintiff’s solicitors wrote to Twitter Inc:

  • drawing attention to the tweets,
  • the offending information contained in them and
  • the user’s impersonation of the plaintiff’s CEO.
  • requesting Twitter Inc to:
    • remove the offending material from the Twitter website;
    • to deactivate the ‘fake’ user’s account;
    • to take all other steps available to it to prevent the user from publishing further confidential information on the Twitter website; and
    • to provide the identity and contact information of the user.

Twitter responded Read the rest of this entry »

Cresswell v Cresswell [2017] VSCA 272 (28 September 2017): specific performance, agreement, contract and equity and procedural fairness

October 19, 2017

The Victorian Court of Appeal in Cresswell v Cresswell [2017] VSCA 272 upheld a decision from the County Court which ultimately revolved around procedural fairness and a fair trial.  It also highlighted the importance of clear pleadings.

FACTS

The facts revolve around land and unfortunately arrangements between family members that went awry.  Not an unusual situation which often enough gives rise to litigation.

The Applicantsare the parents of the Respondent and his sister, Tamarand [1].

Prior to 30 November 2001, the Applicants and the Respondent and Tamarand agreed, at [2], that: Read the rest of this entry »

Johnston v Holland (No 2) [2017] VSC 597 (4 October 2017): Defamation, limitation of action, extension of time, exercise of discretion, pleadings

October 8, 2017

In Johnston v Holland (No 2) [2017] VSC 597 Dixon J heard and upheld an appeal from a decision of Associate Justice Derham in Johnston v Holland [2017] VSC 448.

FACTS

The plaintiff, Johnson,  appealed the judgment of Associate Justice Derham refusing an application brought under s 23B of the Limitation of Actions Act 1958 (Vic) (‘the Act’):

  1. to extend the limitation period;
  2. to permit him to join Wayne Murray as a second defendant to a proceeding; and
  3. to amend his statement of claim.

Johnson is the principal of The Peninsula School in Mount Eliza, Victoria and the defendant, Holland, is a former director of marketing at the School and a parent of students or former students who attended the school [2].

Johnson is suing for damages for defamation arising from:

  • a series of ‘tweets’ (to approximately 26 followers) and
  • an email (to at least 30 recipients) published on 2 April 2015 to the staff, parents and students of the School.

Johnson proposed to Read the rest of this entry »

Federal Court issues practice notes on interest on judgments

September 20, 2017

Properly determining the interest component in an award is an important calculation.  And one that is done poorly more often than Read the rest of this entry »

Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 (16 August 2017): Corporations Act sections 588F and 1322, power to amend, liquidator’s action, rule 3.02

September 19, 2017

Associate Justice Randall in Re Convector Grain Pty Ltd (In Liquidation) [2017] VSC 473 rejected an application for an extension of time on the service of originating process. In doing so his Honour undertook a very comprehensive review of the interaction of the Civil Procedure Rules with the Corporations Rules and section 1322 of the Corporations Act.

FACTS

The second and third plaintiffs, liquidators of the first plaintiff (‘Convector Grain’), sought relief under s 588FF(1) of the Corporations Act 2001 (Cth) (‘the Act’) that a preference in the sum of $337,928.27 be repaid to Convector Grain [1].

The liquidators were appointed as voluntary administrators in place of those originally appointed on 5 September 2013. By resolution made on 10 February 2014 they became liquidators of Convector Grain [14].

This proceeding is Read the rest of this entry »

Re Carter Holt Harvey Woodproducts (Australia) Pty Ltd (No 1) [2017] VSC 499 (6 September 2017):EQUITABLE CHARGE, whether debt was secured by a charge, agreement to charge, terms of guarantee and indemnity,equitable charge,meaning of ‘will charge’, priorities

September 17, 2017

The Supreme Court in Re Carter Holt Harvey Woodproducts (Australia) Pty Ltd (No 1) [2017] VSC 499 )  reviewed and considered the operation of a charge, by virtue of a guarantee and indemnity, vis a vis other claims on assets.  In this case the claim of a chargee defeated a claim by a liquidator who mounted a vigorous attack on the validity of the charge.

FACTS

Amerind Pty Ltd (receivers and managers appointed) (in liquidation) (Amerind) acted as trustee of the Panel Veneer Processes Trading Trust, which manufactured and distributed decorative and architectural finishes [1]. On 11 March 2014, the sole director of Amerind, Mr Naja David (“David”) resolved to appoint administrators to Amerind.  As Amerind’s  facilities and accounts were secured with the Bendigo and Adelaide Bank Limited on 11 March 2014 it appointed receivers and managers. Amerind was hopelessly insolvent [2]. Read the rest of this entry »

Stellar Projects (Vic) Pty Ltd v Cambridge Plumbing Pty Ltd [2017] VSC 532 (8 September 2017: section 459G of the Corporations Act, some other reason to set aside statutory demand.

September 11, 2017

The Supreme Court, per Randall AsJ  set aside a statutory demand in Stellar Projects (Vic) Pty Ltd v Cambridge Plumbing Pty Ltd [2017] VSC 532.  This was a case where the court had to consider conflicting authorities regarding a prematurely sworn affidavit. It ended up being a very bad at the office for the defendant whose statutory demand was set aside.

FACTS

The statutory demand dated 14 July 2017 claimed the sum of Read the rest of this entry »

Soper Industries Pty Ltd v Toll Transport Pty Ltd [2017] VSC 524 (1 September 2017): application to set aside statutory demand, whether there was a genuine dispute, section 459 of the Corporations Act, inconsistency between claim and documentation

September 5, 2017

The Supreme Court, per Gardiner AsJ, dismissed an application to set aside a statutory demand in Soper Industries Pty Ltd v Toll Transport Pty Ltd [2017] VSC 524.

FACTS

Soper Industries Pty Ltd (‘Soper Industries’), applied under s 459G of the Corporations Act 2001 (Cth) (‘the Act’) to set aside a statutory demand served on it by Toll Transport Pty Ltd (‘Toll’), on 15 March 2017 [1].

Under the demand Read the rest of this entry »

Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017 take effect on 1 September 2017

August 30, 2017

The Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017  comes  into effect on 1 September 2017.  That will Read the rest of this entry »

Ausurv Operations Pty Ltd v Swanston Joe Pty Ltd (Costs) [2017] VSC 389 (30 June 2017): statutory demand by solicitor, application to set aside under section 459 of Corporations Act 2001, indemnity costs paid by defendant

August 28, 2017

In Ausurv Operations Pty Ltd v Swanston Joe Pty Ltd (Costs) [2017] VSC 389 Associate Justice Gardiner considered an application to set aside a statutory demand issued by a former solicitor of a company.

FACTS

On 7 March 2017 Ausurv Operations Pty Ltd (‘Ausurv’) applied to set aside a statutory demand dated 14 February 2017 served on it by Read the rest of this entry »