Complete Equipment Solutions Pty Ltd v Tesab Engineering Limited (A Company Registered in the United Kingdom, Company No. NI026214) [2016] VSC 253 (18 May 2016): Statutory demand, whether service within 21 period

May 19, 2016

In Complete Equipment Solutions Pty Ltd v Tesab Engineering Limited (A Company Registered in the United Kingdom, Company No. NI026214) [2016] 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.

FACTS

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 [1]. The court noted, with some annoyance, that the Read the rest of this entry »

Jane Doe 464533 v N.D: Ontario Superior Court recognises the privacy tort of “publication of embarrassing private facts” arising out of revenge porn

February 19, 2016

The Ontario Superior Court of Justice in Jane Doe 464533 v ND (2016 ONSC 541) has expanded the tort of privacy to incorporate the publication of embarrassing facts.  It is a very significant decision and an advance in the development of the law of privacy, in Canada at least.  It is also a key case considering the egregious practice of revenge porn.  The commentary will be quite useful in the development of the tort in relation to this type of fact situation.

FACTS

The parties met while at high school and started dating while they were both in Grade 12.  They stopped dating but continued to see each other romantically throughout Read the rest of this entry »

Cato Brand Partners Pty Ltd v Air India Limited [2016] VSC 28 (5 February 2016) : statutory demand, Corporations Act Part 5.7

February 9, 2016

The Supreme Court, per Efthim As J, considered an application to set aside a statutory demand in Cato Brand Partners Pty Ltd v Air India Limited [2016] VSC 28.  The issue was bringing an application against a foreign corporate body and the application of foreign law in determining the applicable statute of limitations.

FACTS

In December 2009 the plaintiff’s chairman, Kenneth Willis Cato, travelled to India in December 2009 and February, April and June 2010 for meetings with representatives of the defendant.  An agreement was entered into on 2 June 2010 [3].

The plaintiff claims it was owed Read the rest of this entry »

Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752 (18 December 2015): Section 459P Corporations Act, section 29 Civil Procedure Act 2010, duty of disclosure and consequences of failure

January 24, 2016

In Locker Group Pty Ltd v HEA Australia Pty Ltd [2015] VSC 752 the Victorian Supreme Court, per Randall AsJ, considered the authorities relating to the obligations to provide full disclosure, the failure to disclose a material fact and the consequences of not complying with an order in the service of an application resulting in late service. The Court made orders under the Civil Procedure Act relating to the very unfortunate conduct of Locker Group. The court also considered the scope of the power under the Civil Procedure Act in making costs orders encompassing costs incurred by liquidators.

FACTS

On 16 April 2014  Australia Pressure Vessel Heads (2011) Pty Ltd, the Plaintiff, filed an originating process seeking to wind up HEA Australia Pty Ltd (‘the Company’) under s 459P of the Corporations Act 2001 (Cth) (‘Corporations Act’)[2]. On 14 May 2014 the plaintiff’s counsel appeared. There was no appearance for the Company. There were negotiations the result of which was that payment was expected within seven days. A further hearing was adjourned to 21 May 2014 [3]. At that time the plaintiff’s counsel again appeared, advised that the plaintiff had been paid out and sought to be excused. Counsel for Locker Group Pty Ltd, a supporting creditor (‘Locker Group’), appeared and advised the Court that it wished to be substituted as plaintiff. At that time the Company had not filed a notice of appearance under r 2.9  of the Supreme Court (Corporations) Rules 2013 and s 465C of the Corporations Act [4]. Read the rest of this entry »

Report on Cyber Resilience, highlights the need for proper cyber security, this time from ASIC

April 6, 2015

As if it were necessary to say that data security was a matter of proper corporate governance the Australian Security and Investment Commission (“ASIC”) has made that abundantly clear with its Report 429 Cyber Resilience: Health Check.  As far as ASIC is concerned it has a role to ensure that companies maintain proper cyber security standards. This is a very important development because Read the rest of this entry »

WILSON -v- FERGUSON [2015] WASC 15 (16 January 2015): Breach of confidence, privacy, injunctive relief

January 27, 2015

In Wilson v Ferguson[2015] 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.

FACTS

The plaintiff met the defendant in May 2011. Both were employed at Cloudbreak and worked in the same crew [19].  They began to date as boyfriend and girlfriend in November 2012 and after a few weeks the plaintiff moved into the defendant’s home [20]. During their relationship they would send each other photographs of a sexual nature depicting each other naked or partly naked [22] with the defendant initiating the exchange. The defendant also took explicit photographs of the plaintiff with her knowledge and consent [22]  and she also used her mobile phone to take videos of herself nude and, on at least one occasion, engaging in sexual activity [23].

Some time after the videos were taken, the plaintiff Read the rest of this entry »

Corporations Legislation Amendment (Deregulatory and Other Measures Bill 2014 passes the House of Representatives

November 28, 2014

For those solicitors and barristers practising in Corporations and insolvency law it is worth noting the passage of the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 through the House of Representatives yesterday. While anything can happen in the Senate it is hardly a contentious piece of legislation. Its passage is assured.

The Bill, as the summary on the Parliamentary Business page on the bill states, will:

provide that a general meeting of a company must only be arranged if members with at least five per cent of voting shares make the request; reduce the remuneration reporting requirements; clarify the circumstances in which a financial year may be determined to be less than 12 months; and exempt certain companies limited by guarantee from the need to appoint or retain an auditor; and Australian Securities and Investments Commission Act 2001 to: enable members of the Takeovers Panel to perform duties while in Australia and overseas; and provide that the Remuneration Tribunal is responsible for setting the terms and conditions of Chairs and members of the Financial Reporting Council, the Australian Accounting Standards Board and the Auditing and Assurance Standards Board

The effect of the BIll include Read the rest of this entry »

Rescom Asia Pacific Pty Ltd v Reapfield Property Consultants Pty Ltd [2014] VSCA 92 & Foxhat Employment Service Pty Ltd v Deputy Commissioner of Taxation [2014] VSC 218: application to set aside statutory demands

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 [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:

50th anniversary of New York Times v Sullivan

March 10, 2014

One of the modern myths of American jurisprudence is the primary the Constitution has always given to the First Amendment.  In that context the media has a significant, almost unassailable, defence when facing a claim of defamation from a public figure. It was not always thus.  In fact pre 1964 US defamation law was not much different to that of its cousins across the lake in the UK.

It was the US Supreme Court decision of New York Times v Sullivan, 50 years ago on 9 March 1964, which elevated the First Amendment protections to its current position of primacy. That position has not been reduced, as some of the decisions of the Warren Court have been (such as the Miranda decision).  If anything it has been bolstered.

The Atlantic covers the story of New York Times v Sullivan in Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment. As usual a thoughtful and engrossing account of how the decision came about.

It provides:

On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against The New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn’t been the same since.

Attorney General announces Australian Law Reform Commission inquiry to review legislation that unreasonably encroach on traditional rights, freedoms and privileges

December 11, 2013

The Attorney General announced an Australian Law Reform Commission enquiry into traditional rights and freedoms in the context of Commonwealth Legislation that might restrict them.  Given the commentary in the last 18 months this should hardly come as a surprise.

The press release provides:

NEW AUSTRALIAN LAW REFORM INQUIRY TO FOCUS ON FREEDOMS

The Attorney-General, Senator the Hon George Brandis QC, has asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges.

Senator Brandis said Read the rest of this entry »