Omar Property Pty Ltd & Others v Amcor Flexibles (Port Melbourne) Pty Ltd [2019] VSC 446 (3 July 2019); discovery, content of pleadings and redactions

July 22, 2019

In Omar Property Pty Ltd & Others v Amcor Flexibles (Port Melbourne) Pty Ltd [2019] VSC 446 the Supreme Court, per Mukhtar AsJ considered the principles of ambit of discovery and the use of redactions in a hard fought discovery application.

FACTS

The five-day trial dated was vacated because of three intervening discovery fights [1].

This decision related to the first fight.

The proceeding is a dispute over a commercial lease of industrial premises. The question is whether the defendant has validly exercised an option to renew its lease or is entitled to renew the lease. The plaintiff says Read the rest of this entry »

A’la Carte Homes Pty Ltd v AAPD CO P/L [2019] VSC 108 (5 March 2019): application to set aside, section 459J Corporations Act

March 13, 2019

In A’la Carte Homes Pty Ltd v AAPD CO P/L [2019] VSC 108 the Supreme Court, per Randall AsJ, set aside a statutory demand. The key issue was the failure of the assignment of a debt being described in the statutory demand or accompanying affidavit.

FACTS

The application was made under ss 459G, 459H and 459J of the Corporations Act 2001 (Cth). The orders sought were Read the rest of this entry »

Yang v Finder Earth Pty Ltd [2019] VSCA 22 (15 February 2019): application to set aside default judgment, importance of pleading

March 4, 2019

The Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 again highlighted the caution the courts are now taking in dealing with applications which determine a claim without trial such as summary judgment applications and default judgment applications. It is also a case which highlights the fact that pleadings matter. 

FACTS

Luo and Yang entered into the principal agreement, in October 2015 (the ‘agreement’) [8] for the stated purpose of:

to successfully obtain the 888 visa for Luo and her family to migrate to Australia and to be granted the Permanent Resident Visa (hereinafter referred to as ‘the Immigration Project’).

The agreement:

  • was described as a partnership between Luo and Yang

Read the rest of this entry »

C Tina Pty Ltd v Warners Electroplating Pty Ltd [2019] VSC 66 (18 February 2019): Application to set aside statutory demand, s 459G Corporations Act 2001

February 21, 2019

In C Tina Pty Ltd v Warners Electroplating Pty Ltd [2019] VSC 66 Associate Justice Gardiner set aside a statutory demand.

FACTS

On 1 October 2018, the defendant (‘Warners’) served on the plaintiff (‘C Tina’):

  • a creditors statutory demand for payment of debt; and
  • an affidavit in support sworn by Grant Warner on 26 September 2018 [1].

The Demand related to two invoices totalling $166,332.10 for work and labour done and materials supplied [2].

On 19 October 2018, C Tina made application by originating process to set aside the Demand [3].

The application is based on the ground that C Tina has a genuine dispute in relation to the debt in that it never contracted with Warners and that Read the rest of this entry »

In the matter of Polar Agencies Pty Ltd [2019] VSC 43 (8 February 2019): winding up application, ss 440 & 447A Corporations Acct 2001

February 14, 2019

Judicial Registrar considered an application to wind up a company when administrators had been appointed shortly before the hearing In the matter of Polar Agencies Pty Ltd [2019] VSC 43.

FACTS

The plaintiff  a statutory demand served on the defendant by the plaintiff by post sent on 18 October 2018 [4].  The demand is in respect of debts totalling $558,508.56 for goods supplied by the plaintiff to the defendant and invoiced in the period March to August 2018. The defendant failed to comply with it [4] and made no application to set aside the statutory demand [5] thereby failing to comply with the demand in about midNovember 2018 which gave rise to a statutory presumption of insolvency under s 459C(2)(a) of the Corporations Act (the Act).

By an originating process filed on 16 November 2018 [3] the plaintiff applied for the defendant be wound up in insolvency pursuant to s 459P and s 459Q of the Act [1].

The proceeding first came on for hearing on 19 December 2018 where:

  • the plaintiff appeared and the defendant did not.
  • the Court was informed that negotiations were underway. Directions were made that any request for a further adjournment was to be supported by an affidavit to be filed and served by 4 February 2019,
  • the hearing was adjourned to 6 February 2019 [6].

Read the rest of this entry »

Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd & Anor [2018] VSC 666 (9 November 2018): preliminary discovery, Harman obligations

December 9, 2018

The Supreme Court in Bensons Property Group Pty Ltd v Commonwealth Bank of Australia Ltd & Anor [2018] VSC 666 granted an order for preliminary discovery.  In considering the application the court considered the issues relating to Harman undertakings.

FACTS

Bensons,  a property developer,  engaged the Marcus Group Pty Ltd  “Marcus” as its builder on projects. On 19 April 2018, Bensons received an email, purportedly from the Marcus Group, directing that a payment due to it be made to a Commonwealth Bank of Australia account  (the CBA Account) [5]. On 19 April 2018, Bensons electronically transferred $917,900 to the Relevant CBA Account. As this was not an account maintained by Marcus Bensons was defrauded by person(s) unknown [6].

Bensons reported the fraud to Victoria Police and Read the rest of this entry »

Jolimont Heights Pty Ltd v Ryan [2018] VSC 678 (9 November 2018): section 459 of Corporations Act, application to set aside statutory demand, genuine dispute

November 22, 2018

The Victorian Supreme Court, per Matthews JR, considered an application to set aside a statutory demand in  Jolimont Heights Pty Ltd v Ryan [2018] VSC 678.

FACTS

Jolimont Heights Pty Ltd (‘JH’), made an application pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Act’) by originating process dated 9 July 2018 to set aside a statutory demand dated 19 June 2018 (‘Statutory Demand’)  [1].

The application was made under s 459H &/or s 459J on the basis:

  • there was a genuine dispute as to the existence of the debt
  • due to some other reason, being that the Statutory Demand was defective  [2].

In support of its application, JH relied on Read the rest of this entry »

Re Ad Astra Institute Pty Ltd [2018] VSC 563 (25 September 2018) and : Section 359G Corporations Act, application to set aside statutory demand, 21 day affidavit required to ‘raise’ or ‘identify’ a particular ground expressly, genuine dispute, offsetting claim.

November 3, 2018

The Victorian Supreme Court in Re Ad Astra Institute Pty Ltd [2018] VSC 563 considered an application to set aside a statutory demand.  In dismissing the application the court undertook a useful analysis of both genuine dispute but more particularly the approach to be taken in preparing an offsetting claim.

FACTS

The defendant was engaged to develop QMS and other documentation (‘Training Documentation’) to meet the requirements of being a Registered Training Organisation (‘RTO’) and on the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) [4].

In July of 2016, the plaintiff offered the defendant a contract for services, [4], with consultancy fees at:

    • an hourly rate (minimum of 3 hours) $575 per hour + GST
  • daily rate (maximum of 8 hours) $2,800 per day + GST [5].

The note at the bottom of the consultancy fees provides:

Please note:The terms of all invoices are 14 days and all invoices will be charged according to the hourly rate plus GST (Goods and Services Tax). These rates are reviewed from time to time and may change. We will tell you of any changes as soon as practicable after a change occurs [6].

with a further stipulation :

As negotiated:It is agreed that IRM [the Defendant] will cap its fees payable for initial registration and CRICOS registration at AUD$100,000 inclusive of required ASQA fees.

The Agreement was set out to have been made on 25 July 2016 and executed by James Sackl on behalf of the plaintiff. At all material times Read the rest of this entry »

Trkulja v Google LLC [2018] HCA 25 (13 June 2018): Defamation, publication, summary dismissal, imputations arising out search engine results

September 2, 2018

The High Court in Trkulja v Google LLC [2018] HCA 25 upheld an appeal from the Victorian Court of Appeal regarding a summary judgment application. It is a very significant decision in relation to pleading the of defamation when the imputations arise from search engine results.

FACTS

While not enamoured of the drafting the Court noted that the Appellant’s (Trkulja”) Amended Statement of Claim was  sufficiently comprehensible to convey that Trkulja alleged that:

  • Google defamed him by publishing images which convey imputations that he:
    • “is a hardened and serious criminal in Melbourne”, in the same league as figures such as “convicted murderer” Carl Williams, “underworld killer” Andrew “Benji” Veniamin, “notorious murderer” Tony Mokbel and “Mafia Boss” Mario Rocco Condello;
    • is an associate of Veniamin, Williams and Mokbel; and
    • is “such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld”[3].
  • Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for  Trkulja’s name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search [4].
  • the allegedly defamatory matters  comprising two groups:
    • “the Google Images matter” and
    • “the Google Web matter” [5]
  • some of the pages include an image that contains text stating, inter alia, “Google lawsuit in court”, “COLOURFUL Melbourne identity Michael Trkulja” and “Mr Trkulja an associate of Mick Gatto” [7]
  •  the images matter and the web matter are defamatory of  Trkulja in their natural and ordinary meaning and  carry the following defamatory imputations:

Read the rest of this entry »

A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) [2018] VSC 468 (22 August 2018): failure to comply with statutory demand, interlocutory injunction, allegation of abuse of process

August 31, 2018

The Victorian Supreme Court in A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq) [2018] VSC 468 considered and dismissed a plaintiffs’ application for injunctive relief to prevent an application under section 459 of the Corporations Act 2001 being made.

FACTS

On Friday 15 June 2018, the plaintiffs sought urgent interlocutory relief and final relief by way of an injunction to enjoin the defendant from making an application under s 459P of the Corporations Act 2001 (Cth) to wind up each of the plaintiffs in insolvency in connection with statutory demands Read the rest of this entry »