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:
Posted in Commonwealth Legislation, Insolvency, Supreme Court of Victoria, Victorian Court of Appeal
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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.
Posted in Defamation, Legal
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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 »
Posted in Australian Legislation, Commonwealth Legislation, Legal
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December 9, 2013
Today the Federal Court announced the transition to complete electronic filing and storage by the end of 2014. Many in the profession have known for some time of the Federal Court’s preference for moving in this direction.
Details of the process are as follows (and found here):
Federal Court of Australia’s Electronic Court File
Project overview
The Federal Court of Australia is an early adopter of the use of information technology to increase the effectiveness, efficiency and accessibility of the Court. Technology has, and will continue to change court operations, similar to the ways in which technology has affected business practices across the globe.
The Court is currently undertaking an important change in its internal operations – it will transition from paper based information management to digital files. This transition is called the Electronic Court File (ECF) project.
This change will primarily affect the internal functions of the Court but will also provide opportunities for Court users to expand how they interact with the Court.
The ECF project is a further step towards the creation of a single web-based interface, which will effectively integrate the electronic provision and management of information and services. We use the term my files to describe the service. Registered court users will be able to see immediately a list of their files or more precisely, the information or documents they are authorised to access on the Court’s files. They will be able to undertake electronic interaction with the Court and other court users, in respect of my files (ie. your files).
Project aims
The key aims of the project are to:
Posted in Federal Court, Legal
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December 2, 2013
The High Court will hand down its decision in Willmott Growers Group Inc v. Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) In its capacity as manager of the unregistered managed investment schemes listed in Schedule 2 and Ors this Wednesday 5 December 2013.
For those, like myself, who practice in the corporations and insolvency area it is a long awaited decision with significant ramifications.
The High Court transcript provides:
MR G.T. BIGMORE, QC: May it please the Court, I appear Read the rest of this entry »
Posted in Corporations Law, Insolvency, Legal
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November 25, 2013
The Federal Court Rules 2011 have been amended to support the first stage of the implementation in the Federal Court of an electronic court file.
The amendments will make relatively minor changes to such things as the use of stamps and seals; preparation and lodging of documents; redacting, amending and removing documents; and producing documents for inspection or in compliance with a subpoena.
According to the notification from the Fedeal Court the the Amendment Rules will:
1. amend subrules 2.01(2) and (3) and paragraph 39.35(1)(b) and Schedule 1 to clarify that either the seal of the Court (for convenient processing electronically) or the stamp of a District Registry (for convenient processing in paper) can be used;
2. insert new rules Read the rest of this entry »
Posted in Federal Court, Legal, Practice and Procedure
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This practice note deals with cross-border insolvency co-operation with foreign courts. It is found here.
The amendment is the inserttion of paragraph 6 Read the rest of this entry »
Posted in Federal Court, Legal
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The Federal Court has issued a new Practice Note APP 2, dealing with the Court’s requirements for Appeal Books and preparation for hearing. It is found here.
The amendments include Read the rest of this entry »
Posted in Federal Court, Legal
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November 24, 2013
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:
Posted in General, Insolvency, Victorian Court of Appeal
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October 14, 2013
The Supreme Court considered an urgent application for an interlucotury injunction in a privacy related matter in Candy v Bauer Media Limited [2013] NSWSC 979. The urgent application was made on 20 July 2013 with the decision made and reasons published that same day.
FACTS
The plaintif, Holly Rachel Candy, is better known in Australia by her Maiden Name, Holly Valance. Sometime Soapie star who later developed a musical, and occasional movie, career. Now a celebrity in the UK married to a wealthy businessman. For those consumers of gossip magazines and celebrity websites this is almost trite. Nevertheless it is not knowledge that would be regarded as notorious and it does not seem to have made its way into the affidavit material with his Honour stating:
- The plaintiff is an actress. She is an Australian Read the rest of this entry »
Posted in General, Legal, New South Wales Supreme Court, Privacy
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