February 14, 2017
The Supreme Court, per Sifris J, heard an application under sections 233 and 461(1)(k) of the Corporations Act 2001 in Peter Exton & Anor v Extons Pty Ltd & Ors  VSC 14.
Many oppression proceedings in the Corporations List involve family run companies. Exton v Extons Pty Ltd is not unusual in this regard. The First Plaintiff, Peter, and the Sixth Defendant, Ian, are brothers. They each hold, either directly or indirectly, 50% of the shares in each of the companies that made up the Extons group. They are also directors of those companies .
The Extons group was commenced by Peter and Ian’s father and uncle in the 1950s, when it was started . It engages in earthworks, excavating and contracting in New South Wales and Victoria and occasionally sells machines including machines that it holds for the purposes of its contracting work .
Peter started Read the rest of this entry »
February 5, 2017
In Gucce Holdings Pty Ltd v Bank of Queensland Limited  FCA 12 the Federal Court considered whether a sale for undervalue, or at least a claim as such, was a basis for an offsetting claim (and what is required) as well as whether a special leave application was sufficient to set aside a statutory demand.
Gucce Holdings Pty Ltd (ACN 099 191 714) filed an application, , with an affidavit of Tina Michelle Bazzo, director of Gucce,, on 29 December 2015 pursuant to s 459G of the Corporations Act 2001to set aside a statutory demand made by the Bank of Queensland Limited.
Bazzo stated that Read the rest of this entry »
September 23, 2016
The Supreme Court in Pekell Delaire Holdings Pty Ltd v Bendigo and Adelaide Bank Limited  VSC 570 considered a statutory demand where a key issue was the effect of settlement of group proceedings acting as a bar to a claim of a genuine dispute to a statutory demand.
In July 2006 the applicant, Pekell Delaire Holdings Pty Ltd (“PDH”) applied to Great Southern Plantation Projects for two grove lots in the Great Southern Organic Olives Income Project and four vine lots in the Great Southern Wine Grape Income Project with associated applications for term finance. Finance was approved and funds were advanced on the basis of repayment in seven years of principal and interest. The loans were subsequently assigned and ultimately transferred to Bendigo  Read the rest of this entry »
September 18, 2016
The Federal Court per Murphy J in Furnari v Ziegert  FCA 1080 considered the unusual application for injunctive relief arising out of a defamation action. The decision is notable for its consideration of section 7 of the Telecommunications (Interception and Access) Act 1979 (“TIA Act”).
The applicant purchased a pedigree bobtail Doberman pup from the respondents for $3,500 in December 2015. He said that Ms Ziegert represented that the pup could breed, was a natural bobtail, had been checked by a veterinarian, didn’t have Von Willebrand disease and weighed between 9 and 10 kg. Upon taking delivery of the pub he said it had been sterilised, was diseased, weighed only 4.5 kg, was unhealthy and, as if that wasn’t enough, was not a natural bobtail. Not surprisingly the applicant alleged misrepresentations by the respondents  which is the subject of a proceeding in the Victorian Civil and Administrative Tribunal .
The dispute escalated into a defamation proceeding. His Honour summarised the circumstances as: Read the rest of this entry »
May 19, 2016
In Complete Equipment Solutions Pty Ltd v Tesab Engineering Limited (A Company Registered in the United Kingdom, Company No. NI026214)  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.
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 . The court noted, with some annoyance, that the Read the rest of this entry »
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.
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 »
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  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.
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 .
The plaintiff claims it was owed Read the rest of this entry »
January 24, 2016
In Locker Group Pty Ltd v HEA Australia Pty Ltd  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.
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’). 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 . 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 . Read the rest of this entry »
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 »
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 »