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 »
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 »