August 30, 2017
The Federal Court (Bankruptcy) Amendment (Insolvency and Other Measures) Rules 2017 comes into effect on 1 September 2017. That will Read the rest of this entry »
August 28, 2017
In Ausurv Operations Pty Ltd v Swanston Joe Pty Ltd (Costs) [2017] VSC 389 Associate Justice Gardiner considered an application to set aside a statutory demand issued by a former solicitor of a company.
On 7 March 2017 Ausurv Operations Pty Ltd (‘Ausurv’) applied to set aside a statutory demand dated 14 February 2017 served on it by Read the rest of this entry »
August 27, 2017
Associate Justice Gardiner considered an application to set aside a statutory demand in JJ Armstrong Pty Ltd v Hamptee Pty Ltd [2017] VSC 427. The key issue was whether there had been a proper assignment of a debt.
On 3 January 2017, the defendant (‘Hamptee’) served a statutory demand under s 459E of the Corporations Act 2001 (Cth) (‘the Act’) on the plaintiff (‘JJ Armstrong’) (‘the demand’) [1].
The demand claims that JJ Armstrong owed Hamptee $76,000. The schedule Read the rest of this entry »
Associate Justice Randall considered two applications to set aside separate statutory demands in 289 Grange Road Developments Pty Ltd & Anor v Dalle Projects Pty Ltd [2017] VSC 409. The underlying debts related to progress payments for building works undertaken. That meant it was a factually involved case with quite a technical arguments involving the operation of the Building and Construction Industry Security Payment Act 2002 .
Each application was made pursuant to s 459G of the Corporations Act 2001 (Cth) (‘Corporations Act’) to set aside separate statutory demands, each dated 15 March 2017 in relation to:
Each plaintiff is a different company incorporated for distinct projects [1]
The schedule, at [2] to the statutory demand for Read the rest of this entry »
August 23, 2017
Associate Justice Randall in FF (R & D) Pty Ltd v Australian Securities and Investments Commission [2017] VSC 482 considered the principles in granting leave nunc pro tunc to proceed in a proceeding and the exercise of discretion under section 500 of the Corporations Act.
The Plaintiff’s originating process sought :
On 6 October 2010 an explosion occurred at Fuji Fuels’ premises. The Plaintiff alleges Read the rest of this entry »
August 20, 2017
The Victorian Court of Appeal considered an appeal from an unsuccessful application to set aside a statutory demand in Modeca Investments Pty Ltd v Commonwealth Bank of Australia [2017] VSCA 203. The issue was the question of offsetting claim and its value as far as the applicant was concerned. Ultimately the question became whether the applicant could show there had been a breach of section 420A of the Corporations Act, most importantly whether the process could be successfully attacked.
The alleged debt arose out of a loan agreement entered into between the Commonwealth Bank of Australia (“CBA”) and Read the rest of this entry »
August 16, 2017
The Supreme Court, per Randall AsJ, in Body Corporate Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSC 435 considered what was always going to be an ambitious application to set aside a statutory demand which relied on a judgment debt.
The litigation between the parties was protracted and hard fought in multiple proceedings in the Supreme Court. The history of how things ended up with a statutory demand is necessarily long and involved.
In 2002, the plaintiff, Bodycorp Repairers Pty Ltd (‘Bodycorp’), commenced proceedings against Maisano, in the Federal Court alleging breach of a franchise agreement and inducing breach of contract (the ‘Bodycorp proceeding’) [9]. In 2005, the Bodycorp proceeding was transferred to the Supreme Court of Victoria. Oakley Thompson acted for Maisano in the Bodycorp proceeding between 2004 and 2010 and then from March 2012 until the completion of trial [11]. Bodycorp lost and Maisano obtained a cost order in his favour [11]. An appeal to the Court of Appeal was dismissed and an application for special leave to the High Court was refused. Pursuant to a cost orders made in the Bodycorp proceeding, Maisano commenced proceedings in the Costs Court [12]. Maisano terminated Oakley Thompson’s retainer following a dispute over outstanding legal fees. Oakley Thompson responded by issuing proceedings against Maisano seeking a declaration that it had an equitable lien over the costs judgment held by Maisano and that Oakley Thompson was entitled to have those costs taxed [13]. The Court found in favour of Oakley Thompson and held that it was entitled to have those costs taxed and prosecute the taxation in the Costs Court. Read the rest of this entry »
August 13, 2017
As part of the rich vein of rulings and law that attend the Rebel Wilson case His Honour Dixon J considered an application by the Plaintiff to suppress publication of financial details she received from film contracts in Wilson v Bauer Media (Ruling No 5) [2017] VSC 355
The plaintiff applied pursuant Read the rest of this entry »
August 8, 2017
The rebel Wilson case, known to nerdy lawyer types as Wilson v Bauer Media, is the gift that keeps on giving in providing rulings related to the running of defamation trials. It was a hard fought, taken many points type of case. That meant lots of arguments on points of law. In Wilson v Bauer Media (Ruling No 6) [2017] VSC 356 the court considered and ruled on the defence of triviality and partial justification.
The Plaintiff sought to have the defence of triviality not go to the jury. The defendants pleaded Read the rest of this entry »
July 26, 2017
The Supreme Court, per Randall AsJ, considered an application to set aside a statutory demand in Re Bendigo Central Pharmacy Pty Ltd [2017] VSC 419. The key issue was whether issues ultimately relied upon were raised in the Plaintiff’s initial affidavit, filed within 21 days of the statutory demand being served and the scope and operation of Graywinter affidavits.
The debt relied upon in the statutory demand Read the rest of this entry »