September 23, 2016
The Supreme Court in Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited  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.
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  Read the rest of this entry »
September 18, 2016
The Federal Court per Murphy J in Furnari v Ziegert  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”).
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  which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal .
The dispute escalated into a defamation proceeding. His Honour summarised the circumstances as: Read the rest of this entry »
May 19, 2016
In Complete Equipment Solutions Pty Ltd v Tesab Engineering Limited (A Company Registered in the United Kingdom, Company No. NI026214)  VSC 253 Associate Justice Randall considered the question of service. This is not a common issue in modern day jurisprudence relating to statutory demands. In this case a failure to comply with the service requirements resulted in the plaintiff’s application being dismissed.
The plaintiff, by originating process dated 9 November 2015, made an application under s 459G of the Corporations Act 2001 (Cth) to set aside a statutory demand dated 14 October 2015 . The court noted, with some annoyance, that the Read the rest of this entry »
May 17, 2016
In Golden Taste Investment Pty Ltd v Laurence & Ors  VSC 250 Derham AsJ considered the plaintiff’s application for summary judgment under section 63 of the Civil Procedure Act 2010.
The plaintiff is the master franchisee for the Cacao Green and Red Mango franchises for Australia and operates retail stores in Victoria selling frozen yogurt and coffee products .
The first defendant (‘Daniel’) was a director and Read the rest of this entry »
April 11, 2016
In Re Manlio (No 2)  VSC 130 Justice MacDonald took quite serious action under powers under the Civil Procedure Act 2010 (the “CPA”) with significant consequences for a counsel involved in the case. This decision relates to the conduct of the legal representatives, not the substantive case itself. That decision was handed down on 21 December 2015 in Re Manlio  VSC 733.
It is a particularly informative decision as to Read the rest of this entry »
In Cohen & Ors v Amberley Corporation Australia Pty Ltd  VSC 140 Derham AsJ considered an application for discovery in relation to the administration by a trustee of a discretionary trust. What started out as a consideration of the plaintiff’s application concluded with part of the statement of claim being struck out. It is a very useful decision in the practical side of pleading breach of trust, which can be quite complicated.
The plaintiffs are the children of Harold Campbell-Pretty (‘Harold’) and Kerry Ainley Watkins (‘Kerry’). After 2 divorces he ultimately married Krystyna Campbell-Pretty (‘Krystyna’) . On 27 March 1975, the Campbell-Pretty Family Trust was established by a deed of settlement (‘Trust’ or ‘Trust Deed’). Under its terms Harold was specified as the Appointor and each of the plaintiffs were specified as Primary Beneficiaries .
There were two variations to the Trust Deed:
- on 29 December 1987 the defendant was appointed Trustee in place of the previous Trustee. From about December 1986, Krystyna and Harold were the directors of the defendant. On 29 December 1987, Krystyna was appointed as an additional member of the class of General Beneficiaries under the Trust ;
- on 8 July 2005, the defendant as Trustee of the Trust purported to exercise a power given by clause 20 of the Trust Deed declaring that the plaintiffs were ‘deleted’ as Primary Beneficiaries under the Trust. Harold, as Appointor, consented to the variation .
Harold died on 25 May 2014. Krystyna was his executrix. The plaintiffs received nothing.
Breach of trust claim
The plaintiffs pleaded Read the rest of this entry »
February 18, 2016
In B J Bearings Pty Ltd v Whitehead  VSC 44 Hargrave J considered an application for preliminary discovery and set out the applicable principles. It is a useful Read the rest of this entry »
January 27, 2015
In Wilson v Ferguson WASC 15 the West Australian Supreme Court, per Mitchell J, issued an injunction and awarded damages by way of equitable compensation against the Defendant in a claim brought in equity for the misuse of private information.
The plaintiff met the defendant in May 2011. Both were employed at Cloudbreak and worked in the same crew . They began to date as boyfriend and girlfriend in November 2012 and after a few weeks the plaintiff moved into the defendant’s home . During their relationship they would send each other photographs of a sexual nature depicting each other naked or partly naked  with the defendant initiating the exchange. The defendant also took explicit photographs of the plaintiff with her knowledge and consent  and she also used her mobile phone to take videos of herself nude and, on at least one occasion, engaging in sexual activity .
Some time after the videos were taken, the plaintiff Read the rest of this entry »
December 4, 2014
The Attorney General has announced the welcome appointment of Justice Nettle to the High Court today.
The release provides Read the rest of this entry »
November 21, 2014
The Federal Court, per Perram J, recently considered an application by non parties to affidavit material filed with the court in Dallas Buyers Club, LLC v iiNet Limited (No 1). It is a useful, and well written, exposition on the principles of open justice and, interestingly, the competing issues in non parties seeking access to affidavit material. His Honour specifically foreshadowed that there will need to be consideration of the Australian Privacy Principles (the APPs) as privacy concerns have been raised by the Respondent.
The Applicant (“Dallas”) is making application for preliminary discovery from the Respondent (“iiNet”) under Rule 7.22 of the Federal Court Rules. Dallas obtained  and identified the IP addresses of persons it claims have been involved in file sharing of the film, The Dallas Buyers Club . The IP address identifies Read the rest of this entry »