In Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 Robson J considered the application of the Australian Consumer Law as against the operation of the Corporations Act and powers of liquidators.

FACTS

The auction house operating through the entity Mossgreen Pty Ltd (in liq) (‘Mossgreen’) went into liquidation on 4 May 2018. Administrators had been appointed on 21 December 2017 [1].

As an auctioneer, Mossgreen held a large quantity of goods (the ‘consigned goods’) belonging to other people (the ‘consignors’) described as being:

(a) goods delivered to it to be auctioned, but which had not yet been auctioned;

(b) goods delivered for auction, but which had failed to sell and which were awaiting collection by their owners; and

(c) goods which, although successfully sold at auction, had not been collected by the successful bidders [2].

which were stored in  three warehouses [3].

Sobraz Pty Ltd (‘Sobraz’), the plaintiff, is the landlord of one of the warehouses, situated at 1 Torteval Place, Clayton [3].

The administrators’ stocktake of the goods cost in excess of $1 million [4]. The administrators sought to levy each consignor with the sum of $353.20 per lot as a condition for releasing the lot to the consignor, asserting an equitable lien [5]. The administrators application for Read the rest of this entry »

Justice Kennedy in In the Matter of Innovateq Pty Ltd [2018] VSC 124 considered an application under section 237 of the Corporations Act for leave to commence proceedings in a derivative action.  Judgments regarding leave applications are relatively uncommon.

FACTS

The proceeding involved two applications:

• leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) (Act) to commence court proceedings in the name of Innovateq Pty Ltd (ACN 132 372 242) (Company) against Mr Daniel Phillips (a former employee) and two companies associated with him, Certeq Pty Ltd and Certeq NZ Pty Ltd (Certeq) (Leave Application); and
• for an order that the Company be wound up (Winding Up Application).

The Company, in its capacity as trustee for the Read the rest of this entry »

The Victorian Court of Appeal in Harstedt Pty Ltd v Tomanek [2018] VSCA 84 considered the operation of the second limb of Barnes v Addy and, in particular the requirement to establish knowing assistance.

FACTS

The genesis of the action and appeal was a failed investment scheme known as a private placement program. Investors were promised profits which were to be generated by the investment of capital by a humanitarian organisation [1].

The director of Harstedt, Jeffrey Olsen, had been a stockbroker for about 15 years. In late 2006, he was approached by Noel Carter who said that he had an investment proposal. The investment was described as a ‘private placement program’ for a not-for-profit humanitarian organisation called the ‘Isaiah 61 Foundation’ which would use investors’ capital to make substantial profits under an agreement [4].  Olsen was initially not interested as it offered no capital protection .

At a conference at Carter’s office on 3 March 2007,  Olsen met Stephen Moriarty (“Moriaty”). To meet Olsen’s concerns about capital protection Moriarty  said that funds contributed by Australian investors would stay in Australia in a ‘non-depleting’ account and that the funds would not Read the rest of this entry »

The Federal Court announced today that forms used in proceedings under the Federal Court criminal Proceedings Rules are now accessible and can be lodged by external users.  The Rules can be found Read the rest of this entry »

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 »

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 »

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 »

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 »

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 »

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 »