Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 (9 May 2018): rights to owners of goods held by liquidator under Australian Consumer and Fair Trading Act 2012

May 14, 2018

In Re Mossgreen Pty Ltd (in liquidation) [2018] VSC 230 Robson J considered the application of the Australian Consumer Law as against the operation of the Corporations Act and powers of liquidators.

FACTS

The auction house operating through the entity Mossgreen Pty Ltd (in liq) (‘Mossgreen’) went into liquidation on 4 May 2018. Administrators had been appointed on 21 December 2017 [1].

As an auctioneer, Mossgreen held a large quantity of goods (the ‘consigned goods’) belonging to other people (the ‘consignors’) described as being:

(a) goods delivered to it to be auctioned, but which had not yet been auctioned;

(b) goods delivered for auction, but which had failed to sell and which were awaiting collection by their owners; and

(c) goods which, although successfully sold at auction, had not been collected by the successful bidders [2].

which were stored in  three warehouses [3].

Sobraz Pty Ltd (‘Sobraz’), the plaintiff, is the landlord of one of the warehouses, situated at 1 Torteval Place, Clayton [3].

The administrators’ stocktake of the goods cost in excess of $1 million [4]. The administrators sought to levy each consignor with the sum of $353.20 per lot as a condition for releasing the lot to the consignor, asserting an equitable lien [5]. The administrators application for Read the rest of this entry »

In the Matter of Innovateq Pty Ltd [2018] VSC 124 (24 April 2018): Corporations, bringing proceedings under s 237 Corporations Act, application to wind up company, section 461

May 2, 2018

Justice Kennedy in In the Matter of Innovateq Pty Ltd [2018] VSC 124 considered an application under section 237 of the Corporations Act for leave to commence proceedings in a derivative action.  Judgments regarding leave applications are relatively uncommon.

FACTS

The proceeding involved two applications:

  • leave to the plaintiff pursuant to s 237 of the Corporations Act 2001 (Cth) (Act) to commence court proceedings in the name of Innovateq Pty Ltd (ACN 132 372 242) (Company) against Mr Daniel Phillips (a former employee) and two companies associated with him, Certeq Pty Ltd and Certeq NZ Pty Ltd (Certeq) (Leave Application); and
  • for an order that the Company be wound up (Winding Up Application).

The Company, in its capacity as trustee for the Read the rest of this entry »

Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275 (24 May 2017): section 459G of the Corporations Act 2001, application to set aside a statutory demand, genuine dispute

June 5, 2017

In Medussa Enterprises Pty Ltd v Nationwide Concrete Pumping Pty Ltd [2017] VSC 275  the Victorian Supreme Court, per Gardiner AsJ, dismissed an application to set aside a staututory demand on the basis that there was no genuine dispute.

FACTS

Medusa claimed Read the rest of this entry »

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 »

Health Legislation Amendment (eHealth Bill) 2015 introduced into the House of Representatives

September 18, 2015

Yesterday the Government introduced and read for a first and second time the Health Legislation Amendment (eHealth) Bill 2015.

The Bill is a 126 page behemoth which will warrant close scrutiny.  Briefly it is worth noting some notable features of the Bill:

  • Part 3 provides for the collection, use and disclosure of the healthcare identifiers, identifying information and other information. The simplified outline describes the process as:

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:

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 »

Submissions received by the Legal and Constitutional Affairs Committee regarding the Privacy Amendment (Privacy Alerts) Bill 2013

June 22, 2013

The Committee has received 20 submissions to the Bill.  That is impressive given there was effectively 2 days from referral to cut off period to lodge submissions.

The submissions are:

Fundraising Institute Australia.

Opposed. It says, in part:

.. the Fundraising Institute Australia believes that insufficient consideration has been given to the effect which mandatory data breach notification would have on charities and not-for-profit organisations. Government decision­ makers seem unaware that fundraisers use extensive donor databases in the same way as business organisations do.

………

The additional burden and cost of Read the rest of this entry »

Attorney General to pursue uniform national protection for journalists and sources at next Australia, State and Territory law and justice meeting

June 19, 2013

The Attorney General issued a media release announcing that at the next meeting of Attorneys General (and their equivalents) the Commonwealth will be pursuing uniform national protection for journalists and sources.

The press release provides:

LAW AND JUSTICE MINISTERS TO REVISIT JOURNALIST SHIELD LAWS

 Attorney-General Mark Dreyfus QC today announced that the Australian Government will pursue uniform national protection for journalists and their sources at the next Australian and state and territory law and justice ministers meeting.

“Recent court proceedings have highlighted the inadequacy of protections for journalists in some jurisdictions and lack of uniformity in laws across Australia,” Mr Dreyfus said.

“Journalists play Read the rest of this entry »