In Yuanda Vic Pty Ltd v Facade Designs International Pty Ltd [2020] VSCA 269 the Court of Appeal granted a stay of payment pending hearing of an appeal.  It is an interesting and valuable decision because it is a comprehensive analysis of the principles associated with making a stay application.  It is also notable because the application was successful, a difficult result to achieve normally. 

FACTS

Under a supply and installation agreement dated 13 April 2018 (‘the Contract’), the respondent, (“Facade Designs”) agreed to  instal  façade elements manufactured and supplied by the applicant (“Yuanda”) as part of the construction of commercial and residential towers at 447 Collins Street known as ‘the Arch on Collins’ (‘the Project’) for the price of $14.5 million [5]. Facade Designs provided works from September 2018 until November 2019 when the Contract was terminated [6]. 

On 30 September 2019, Facade Designs provided a payment claim under s 14 of the Building and Construction Industry Security of Payment Act 2002 (‘the Act’) for $4,584,820.68 (inclusive of GST) (‘the Payment Claim’) [7].  Yuanda paid Facade Designs paid  $1,115,455 (inclusive of GST) on 2 October 2019, reducing the amount claimed to $3,469,365.58 [8].

Yuanda failed to provide a payment schedule to the respondent within 10 business days of receiving the Payment Claim, as contemplated by s 15 of the Act [9]. Pursuant to s 15(4) Yuanda became liable to pay Facade Designs the amount claimed on 30 October 2019  [10].  The applicant failed to pay the amount claimed [11]. Facade Designs conceded some reductions and  sought judgment pursuant to s 16(2)(a) of the Act [12].

The Court rejected Yuanda’s  contention that:

(a) the Payment Claim was invalid because it did not sufficiently identify the construction work or related goods and services to which the progress payments related within the meaning of s 14(2)(c) of the Act and as a consequence it was not liable to pay the amount under s 15(4) of the Act (‘the Adequacy of the Payment Claim’); and

(b) the Payment Claim included excluded amounts within the meaning of s 14(3)(b) and pursuant to s 16(4)(a)(ii) of the Act .

In relation to the excluded amounts issue the court held that, in determining 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 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 »

The Victorian Court of Appeal considered an appeal from an unsuccessful application to set aside a statutory demand in Modeca Investments Pty Ltd v Commonwealth Bank of Australia [2017] VSCA 203.  The issue was the question of offsetting claim and its value as far as the applicant was concerned.  Ultimately the question became whether the applicant could show there had been a breach of section 420A of the Corporations Act, most importantly whether the process could be successfully attacked.

FACTS

The alleged debt arose out of a loan agreement entered into between the Commonwealth Bank of Australia (“CBA”) and Read the rest of this entry »

The Victorian Court of Appeal in Culve Engineering Pty Ltd v Apollo General Engineering (Aust) Pty Ltd (in liq) [2017] VSCA 182 considered the scope and operation of Rules to permit a substitution order being made.

FACTS

The third applicant, Sandra Cerrato, was the executrix of the deceased estate of her father, Rocco Cerrato who . Mr Cerrato died on 14 August 2014 [1]. Prior to and in  2010 Mr Cerrato was a director of the first applicant, Culve Engineering Pty Ltd (‘Culve Engineering’), the second applicant, Tena Denham Nominees Pty Ltd (‘Tena Denham’), and the first respondent, Apollo General Engineering (Aust) Pty Ltd (in liquidation) (‘Apollo’) [2]. Ms Cerrato was joined as a defendant to this proceeding in her capacity as executrix in substitution for her father by an order made by an associate judge on 18 September 2015. She and the other applicants unsuccessfully appealed that decision to a judge in the Trial Division [3].

Prior to 21 April 2010 Apollo carried on Read the rest of this entry »

In McDonald v Dods [2017] VSCA 129 the Victorian Court of Appeal considered the issue of inference of publication to unknown individuals who may have read a blog post.

It is an appeal from judgments of Bell J inDods v McDonald (No 1) [2016] VSC 200 (6 May 2016) and Dods v McDonald (No 2) [2016] VSC 201 (6 May 2016).

FACTS

The applicant, McDonald, was the administrator and author of the website ‘www.justice4tylercassidyjust15.com’ (the “website”) from December 2008 to October 2012 where he discussed the death of Tyler Cassidy by police shooting [3]. The respondent Read the rest of this entry »

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 [2].

FACTS

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 [6]. 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 [7].

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[8].  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 [9] 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 [10].

Regarding the contemporaneous conduct the Randall AsJ found [16]:

• 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 [17].

DECISION

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 [3].  The key principles can be reduced to the following:

•  ‘a genuine dispute’ uses ordinary English words and its meaning Read the rest of this entry »

The Court of Appeal in Wolfe v Permanent Custodians [2013] 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.

FACTS

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 [1]. 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 [4]. 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”)[5].

Those terms were, at [6],relevantly:

• Wolfe was to pay arrears Read the rest of this entry »

A standard brief for very junior barristers starting out has been to make application to set aside a judgment obtained in default of defence or appearance.  The gold standard case setting out the principles was, and to a large extent is, Kostakenellis v Allen.   Now the Court of Appeal in Lubura v Nezirevic [2013] VSCA 215 has considered the first element of the test for setting aside judgments, whether the applicant has a defence on the merits. While it is a unanimous decision each of Warren CJ, Osborn JA and Robson AJA each had separate reasons.

FACTS

The facts are most comprehensively set out in Robson AJA’s reasons.

Early in the morning of  Sunday 8 July 2007 the respondent and other friends attended at the Red Star bar in Pultney Street, Dandenong [30].  A fight broke out between two groups, one of which contained the respondent and the other containing the appeallent, both in the bar and outside on the street subsequently. The respondent was surrounded and assaulted by at least two males with bottles, receiving injuries including bruising and laceration to his ear and head, as well as a ruptured globe to his right eye. He lost sight in his right eye as a consequence of the assault. Other members of the group were also assaulted [31]. The appellant was initially charged with four counts: intentionally causing serious injury, and (as an alternative) recklessly causing serious injury, common assault, and affray.  On 25 November 2011, a fresh presentment was filed, with two charges to which the appellant pleaded guilty; assault of a person unknown to the Director of Public Prosecutions and affray [33].

On or about 30 August 2010 the Appellant received the writ in the civil proceeding brought by the respondent. The appellant says Read the rest of this entry »

The court of appeal, per Hansen and Tate JJA, considered the operation of default notices, service and the doctrine of fair notice in Wilde & Anor v Morgan & Ors [2013] VSCA 250. It was an appeal from a decision of AsJ Derhham in Re: Art Pacific Pty Ltd; Wilde v Morgan & Ors [2013] VSC 330 (27 June 2013).

FACTS

The applicants sought orders, set out at [1], that:

(1) the appointment of the first and second respondents as agents for the third respondent by Deed of Appointment of Agents for Mortgagee in Possession dated 23 October 2012 (the Deed) under a mortgage of land between the second applicant and the third respondent was invalid;

(2) further or alternatively, the first and second respondents entry into possession or assumption of control of the land of the second applicant pursuant to the Deed was invalid.

The issue at the core of the hearing at first instance and on appeal was Read the rest of this entry »