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 »

Privacy Amendment (Privacy Alerts) Bill 2013 referred to The Senate Legal and Constitutional Affairs Legislation Committee today

June 18, 2013

Today the Senate referred the Privacy Amendment (Privacy Alerts) Bill 2013 to the Senate Legal and Constitutional Affairs Committee today (the Committee’s  home page is found here).

The Committee is due to report next Monday, 24 June 2013.  Submissions to the Committee close at midday on 20 June 2013.

The Committee’s inquiry page (found here)  provides:

Privacy Amendment (Privacy Alerts) Bill 2013

Information about the Inquiry

On 18 June 2013 the Senate referred the Privacy Amendment (Privacy Alerts) Bill 2013 for inquiry and report.

The bill seeks to amend the Privacy Act 1988 (Cth) to introduce mandatory data breach notification provisions for Commonwealth government agencies and certain private sector organisations.

Please note that submissions close at midday on 20 June 2013

Submissions should be received by 20 June 2013. The reporting date is 24 June 2013.

The Committee is seeking Read the rest of this entry »

Attorney General releases position paper on proposed regulations to the Privacy Amendment (Enhancing Privacy Protection) Act 2013

June 12, 2013

The Attorney General’s Department has released a position paper (found here) on the regulations which are being drafted.

The Position paper provides:.

Table 1—Regulation-making powers relating to Read the rest of this entry »

My general review of the Privacy Amendment (Privacy Alerts) Bill 2013.

June 4, 2013

In this post I have undertaken a general review of the Privacy Amendment (Privacy Alerts) Bill 2013 and each of its provisions.  The Bill’s homepage is found here.

SECOND READING SPEECH

In any review it is useful to set out the second reading speech of the Minister responsible for the legislation.  In this case that is the Attorney General, Mark Dreyfuss.

It provides:

The introduction of the Privacy Amendment (Privacy Alerts) Bill 2013 is the next key step in the government’s major reform of Australia’s privacy laws.

It is a long overdue measure that was recommended by the Australian Law Reform Commission in 2008.

It will introduce a new consumer privacy protection for Australians that will keep their personal information more secure in the digital age. It will also encourage agencies and private sector organisations to improve their data security practices.

In its 2008 privacy report, the Australian Law Reform Commission found that, as government agencies and large companies collected more and more personal information online, there was an increasing risk that this could become subject to data breaches. There were studies to show that the frequency of data breaches was increasing and their consequences were becoming more severe.

This trend has continued Read the rest of this entry »

Privacy Amendment (Privacy Alerts) Bill 2013 introduced into Commonwealth Parliament and read a second time

May 29, 2013

The Privacy Amendment (Privacy Alerts) Bill 2013 was introduced into Parliament and read a second time today.  The homepage for the legislation is found here.  The Bill is found here (in PDF format).  The Explanatory Memorandum is found here.

The Second Reading Speech was moved.

A bill to be introduced into Federal Parliament to require businesses and government agencies of dta breaches affecting individuals’ privacy

May 28, 2013

The Attorney General held a press conference and issued a press release announcing the introduction into the Parliament of legislation requiring mandatory notification of data breaches which affect privacy.

The press release states:

PRIVACY ALERTS TO NOTIFY AUSTRALIANS OF DATA BREACHES

 

New laws to be introduced in Parliament tomorrow will require businesses and government agencies to notify people when a data breach affecting their privacy occurs.

“With businesses and government agencies holding more information about Australians than ever before, it is essential Read the rest of this entry »

Platinum Communications Pty Ltd v Computer Networks Pty Limited [2012] FCA 1260 (14 November 2012): statutory demand, application to set aside, amendment

December 19, 2012

Griffiths J in Platinum Communications Pty Ltd v Computer Networks Pty Limited [2012] FCA 1260 considered an amendment to application to set aside a statutory demand.

FACTS

The plaintiff, a retailer, and the defendant, a software provider, entered into an agreement whereby the plaintiff would use the defendant’s software under licence and receive related services for payment [1].  When the software was switched on the plaintiff suffered difficulties in many of its stores [7].  The plaintiff claimed Read the rest of this entry »