July 6, 2014
In Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd and Foxhat Employment Service Pty Ltd v Deputy Commissioner of Taxation the Victorian Court of Appeal and the Supreme Court considered applications to set aside statutory demands in very different circumstances.
Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd
The applicant sought leave to appeal a decision of Randall AsJ dismissing an application to set aside a statutory demand. The grounds of appeal included a failure to find there was a genuine dispute or offsetting claim .
The statutory demand relates to a claim for commission on the sale of various apartments in Carlton. The vendor retained Rescom as the underwriter for the sale of the apartments. It was a term of the retainer that in the event that the total sale price of the apartments did not reach a pre-determined level, Rescom would pay the difference to the vendor . If the total proceeds exceeded the predetermined level the vendor would pay the excess amount to Rescom. If the total proceeds exceeded a pre-determined level by a certain amount, then the excess would be shared between Rescom and the vendor .
Rescom engaged Reapfield as its sole marketing agent in Singapore on terms which included a 5% commission on the transacted price of all sales within Singapore. The Agreement referred to a price schedule in an Annexure A of the agreement.
There was, and is, a dispute between the parties as to contents of Annexure A to the agreement with there being two schedules, one referring to lower prices than the other. That said Randall AsJ found he did not need to determine which schedule was incorporated into the agreement for the purpose of determining the application. Focusing on the terms of the marketing agreement and on contemporaneous conduct  he found that the agreement did not impose an obligation on Reapfield other than to use all due care, skill and diligence. There were no consequences for failure by Reapfield to achieve a particular price .
Regarding the contemporaneous conduct the Randall AsJ found :
- the vendor accepted offers made by purchasers procured by Reapfield and booking forms that set out the purchase price and were signed on behalf of Rescom [over the caption] “accepted by underwriter”
- email correspondence to the effect that Rescom “appreciated the good job” and that Rescom was in the “midst of arranging payment as promised”.
- text messages passing between Rescom and Reapfield accepting the invoice for the commissions claimed without complaint and advising that payment would be made when Rescom received draw downs “from equity partners.”
- there were over 20 text messages where Reapfield sought payment and Rescom repeatedly promised to make payment.
- No complaint was made about the invoice that set out the prices obtained for each of the apartments or the liability to pay the commission .
The Court referred to and liberally quoted from the latest Court of Appeal authority on statutory demands, Troutfarms Australia Pty Ltd v Perpetual Nominees Ltd, handed down last year . The key principles can be reduced to the following:
December 9, 2013
Today the Federal Court announced the transition to complete electronic filing and storage by the end of 2014. Many in the profession have known for some time of the Federal Court’s preference for moving in this direction.
Details of the process are as follows (and found here):
Federal Court of Australia’s Electronic Court File
The Federal Court of Australia is an early adopter of the use of information technology to increase the effectiveness, efficiency and accessibility of the Court. Technology has, and will continue to change court operations, similar to the ways in which technology has affected business practices across the globe.
The Court is currently undertaking an important change in its internal operations – it will transition from paper based information management to digital files. This transition is called the Electronic Court File (ECF) project.
This change will primarily affect the internal functions of the Court but will also provide opportunities for Court users to expand how they interact with the Court.
The ECF project is a further step towards the creation of a single web-based interface, which will effectively integrate the electronic provision and management of information and services. We use the term my files to describe the service. Registered court users will be able to see immediately a list of their files or more precisely, the information or documents they are authorised to access on the Court’s files. They will be able to undertake electronic interaction with the Court and other court users, in respect of my files (ie. your files).
The key aims of the project are to:
November 25, 2013
The Federal Court Rules 2011 have been amended to support the first stage of the implementation in the Federal Court of an electronic court file.
The amendments will make relatively minor changes to such things as the use of stamps and seals; preparation and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.
According to the notification from the Fedeal Court the the Amendment Rules will:
1. amend subrules 2.01(2) and (3) and paragraph 39.35(1)(b) and Schedule 1 to clarify that either the seal of the Court (for convenient processing electronically) or the stamp of a District Registry (for convenient processing in paper) can be used;
2. insert new rules Read the rest of this entry »
This practice note deals with cross-border insolvency co-operation with foreign courts. It is found here.
The amendment is the inserttion of paragraph 6 Read the rest of this entry »
The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.
The amendments include Read the rest of this entry »
November 24, 2013
The Court of Appeal in Wolfe v Permanent Custodians  VSCA 331 considered issues of duty to co operate in the context of a contractual relationship and unconscionability by a creditor in recovery proceedings against a defaulting mortgagor.
Permanent Custodians Ltd (“Permanent”) holds a first mortgage over a property in Pascoe Vale which secured a loan to Mr Wolfe and his former partner . In 2008 there was default on the loan. In August 2009 Permanent obtained default judgment against Wolfe, a default judgment for the loan and for possession of the Property against his former partner and issued a warrant of possession. Eviction by the Sheriff was scheduled for the week commencing 4 December 2009 . Wolfe entered into an arrangement, on terms set out in a letter from Permanent’s solicitors on 1 December 2009 (the “1 December 2009 arrangement”).
Those terms were, at ,relevantly:
November 21, 2013
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited  HCA 46 the High Court, in a unanimous decision, considered a dispute that arose in the discovery process, namely whether the inadvertent disclosure of documents for which privilege should have been claimed gave rise to a waiver. The court however went much further and set its stamp on how it regarded such disputes should be handled.
The appellants were represented by Norton Rose Australia (Norton Rose). The respondents were represented by Marque Lawyers (Marque). On 22 July 2011 parties to litigation Read the rest of this entry »
October 15, 2013
In Fisher v Houston  FCA 1026 Tracey J made orders regarding the award of costs associated with an application for preliminary discovery. The context of the preliminary discovery application relating to a potential claim under the Privacy Act 1988. I was junior counsel for the Applicant in this proceeding.
The prospective applicant (“Fisher”) has a mobile telephone but only provided the number to a limited group of persons. In March 2012 he received a call on his mobile telephone from a journalist, the prospective respondent (“Houston”). Houston asked Fisher for a comment about a legal proceeding in which a business associate of Fisher’s was involved  Fisher never Read the rest of this entry »
October 14, 2013
The Supreme Court considered an urgent application for an interlucotury injunction in a privacy related matter in Candy v Bauer Media Limited  NSWSC 979. The urgent application was made on 20 July 2013 with the decision made and reasons published that same day.
The plaintif, Holly Rachel Candy, is better known in Australia by her Maiden Name, Holly Valance. Sometime Soapie star who later developed a musical, and occasional movie, career. Now a celebrity in the UK married to a wealthy businessman. For those consumers of gossip magazines and celebrity websites this is almost trite. Nevertheless it is not knowledge that would be regarded as notorious and it does not seem to have made its way into the affidavit material with his Honour stating:
- The plaintiff is an actress. She is an Australian Read the rest of this entry »
September 26, 2013
Gordon J in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq)  FCA 928 and then in Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq) (No 2)  FCA 959 made orders regarding the enforcement of a contract and then approval for the Liquidator to enter into that contract. The facts are common to both hearings
The Applicant, (“Chan”) applied under sections 471B, 477(2B) and 477(6) of the Corporations Act 2001 (Cth) (the Act) for a series of orders including a declaration that, on 13 August 2013, she and the First Respondent (“Four C Realty”) entered into a binding and enforceable contract for her to purchase its business assets of Four C Realty. The Respondents submitted that no binding contract existed on 13 August 2013 and, alternatively, if a binding contract did exist, then Chan was required to provide security for what has been described as “the indemnity” .
Four C Realty carries on business as an estate agent, conducting Read the rest of this entry »