The Chief Justice of the Victorian Supreme Court has published a notice to the profession regarding the conduct of applications to set aside statutory demand. The Notice sets down a very specific timetable which must be followed.  There will be consequences for failing to comply.  The second feature of the Notice is a requirement to keep affidavits concise and exhibits “..limited to those documents which are critical to the grounds relied upon by the plaintiff and the real issues in dispute.”

Some points that practitioners must consider:

1. the court will fix a date for final hearing in the timetabling orders;
2. first, the Notice to the Profession must be served on the defendant (Paragraph 4.1).  That is a new development;
3. “as soon as practicable” after filing (Paragraph 5.2), the Court will make timetabling orders in the form of Annexure A to the Notice which requires:
   • seven days after filing of the Originating Process the plaintiff to file ,the plaintiff file an affidavit of service of the Originating Process, supporting affidavit, and a copy of the Notice to Profession
   • 14 days after filing of the Originating Process] the defendant file and serve:
     • an affidavit of service of the statutory demand; and
     • any affidavit on which it intends to rely in opposition to the application; and
   • 14 days after filing of the Originating Process] the defendant advise chambers that the defendant disputes jurisdiction
   • 21 days after filing the Originating Process] the plaintiff must:
     • file and serve any affidavit on which it intends to rely upon in reply;
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers of the judicial officer a bundle of authorities that the plaintiff relies upon in pdf text-searchable format, with cases arranged in alphabetical order and with an electronic bookmark for each case
   • 28 days after filing of the Originating Process the defendant will:
     • file and serve an outline of submissions not exceeding 6 pages and a list of authorities identifying pin-point references; and
     • email the Chambers a bundle of authorities that the defendant relies upon which are not already included in the plaintiff’s bundle.
4. submissions must identify why or why not there is a genuine dispute/offsetting claim/some other matter with reference to the affidavit material;
5. in advance of any non compliance with the timetable/exercise of liberty the parties have to confer regarding the amendments and email the Court to “explain the reason that a variation is sought and provide consent or competing draft minutes of order addressing a revised timetable which maintain the final hearing date and ensures that the last document is filed no later than 72 hours before the final hearing;”
6. evidence or submissions filed out of time will not be considered at the final hearing without a summons for leave supported by an affidavit explaining non-compliance (Paragraph 8.3).
7. in the event of non-compliance the Court may, of its own motion, make a self-executing or ‘unless’ order disposing of the proceeding;
8. the Court will aim to schedule the final hearing to be held within 6 weeks of filing, listed for half a day (Paragraph 8.1); and
9. within 3 days of the hearing the practitioners briefed to appear at the final hearing are to confer with a view to resolving the dispute or narrowing the issues.  The plaintiff must email the Court on behalf of the parties a “joint statement” of  the remaining issues in dispute.

The Notice Read the rest of this entry »

Justice Keogh in Turner v Bayer Australia Ltd (No 6) [2023] VSC 244 considered the application of the Victorian law and the European Privacy law, the General Data Protection Regulation (GDPR). The issue was whether releasing and reporting on personal information of individuals in documents generated in the EU attract protections that the Court should consider in the context of media reporting of a Victorian proceeding.

FACTS

The  proceeding is a product liability action concerning implanted permanent contraceptive medical devices identified collectively as the Essure device [1].

The trial commenced on 11 April 2023 and is estimated to run for 12 weeks [2].

Media organisations sought access to transcript and some of the documents relied on by the parties at trial.

The second defendant, Bayer Aktiengesellschaft,  is a corporation registered in Germany [4].

Some of the defendant’s discovery was of documents that originated from Germany (‘EU documents’), which some of which contained  personal data of natural persons residing in the European Union (‘EU’), including:

• names,
• job titles,
• signatures,
• business email addresses,
• street addresses and phone numbers, and
• personal email addresses,
• street addresses and phone numbers (‘EU data’) [4].

The defendants opposed the media having general access to transcript and EU documents used at trial because, they argue, the release of EU data would be a breach of the GDPR [4].

The defendants sought orders requiring that media apply to the Court for release of transcript and any EU documents tendered at trial and give details of the context and purpose underpinning their request when applying for access, provide the parties with time to object to media access, and provide the parties further time  to redact personal information from documents to be released [5].

The defendants relied on a report of Professor Dr Gregor Thüsing, a jurist and professor at the University of Bonn in Germany who has has expertise in the European law of data protection and data security [12].

The court summarised Read the rest of this entry »

The Victorian Supreme Court in Re Lifestyle Residences Hobsons Bay Pty Ltd (recs & mgrs apptd) [2023] VSC 179 considered a range of issues; whether a director can bring an application when receivers appointed, the operation of section 109X(1)(a) of the Act and the calculation of service. it makes it clear that there is an immutability of filing an application out of time making the application is a nullity.

FACTS

The facts relating to service were:

• on 22 November 2022, Ms Celia Luki, the solicitor with carriage of the matter for the defendant, ascertained the registered office address of the Company from an Australian Securities and Investments Commission (‘ASIC’) company search [35].
• Luki requested the Office Services Clerk in her firm in Redfern, New South Wales, to organise for the documents to be couriered to Melbourne for delivery to the registered office address.
• a Client Services Assistant at McCullough Robertson received Luki’s instructions on the service of the statutory demand in the sum of $213,166.89 in an email forwarded to her by the Office Services Clerk, who also provided the statutory demand and accompanying affidavit.
• the assistant logged into the Toll Priority (Aus) system and inputted those details, recording Luki’s email address as the contact person to receive email updates on the progress of the delivery of the demand. She printed a label from the Toll system, which included all of the recipient’s details which she affixed the label onto a Toll Express Services priority satchel and obtained a tracking number and manifest document.
• in the afternoon of 22 November 2022, a courier from Toll attended the McCullough Robertson office and collected the sealed envelope and two copies of the manifest document [35]
• on 16 December 2022 the tracking log records the documents were delivered to the company at the registered office address on 23 November 2022 at 9:46am. The proof of delivery document clearly records the registered office at which delivery occurred and the signature of Paula accepting delivery of the envelope [36]. Paula was a receptionist an accounting firm engaged by the company, whose business address is the registered office address of the company.
• Paula was unsure who to forward the demand to and sought confirmation from her principal, Mr Sam Cimino. However, because Cimino was extremely busy that day, she was only able to email him and unable to speak to him in person [37].
• on 24 November 2022, Paula had a discussion with Cimino, who instructed her to immediately send the statutory demand to Mr Burgess, Mr Dale Harrison and Mr Peter Van De Steeg, who are nominated contact people at the company. 
• Paula emailed the nominated people at the company, attaching an electronic copy of the statutory demand but erroneously stated the demand had arrived by courier at the registered office address on 24 November 2022 when, in fact, it was delivered by courier the day prior [38]. 

Read the rest of this entry »

Justice Riordan considered an appeal against an order for security for costs in In the matter of Credit Clear Limited [2022] VSC 206.  The appellants were unsuccessful across the board. 

FACTS

By originating process filed 15 July 2020, the plaintiffs made an application under:

(a) sections 175, 232, 233, 461(1)(k), 1041H(1), 1324(1) and 1325 of the Corporations Act 2001 (Cth) (‘the Act’);

(b) sections 12DA and 12GM of the Australian Securities and Investments Commission Act 2001(Cth) (‘the ASIC Act’);

(c) Sections 237 and 243 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2020 (Cth) (‘ACL’); and

(d) the inherent jurisdiction of the Court [2].

The plaintiffs sought the following substantive relief in their points of claim [4]:

(a) The first plaintiff (‘Mr McKendrick’) sought to be reinstated as a director of the first respondent (‘Credit Clear’).

(b) The appellant sought the following relief:

B. Declarations and or orders under s 1325 of the Act, alternatively s 233(1)(c) and or (j) of the Act, s 12GM of the ASIC Act and or ss 237 and 243 of the ACL, that the Separation Agreement dated 11 November 2016 and Intellectual Property Assignment Agreement dated 11 November 2016 (by which the plaintiffs were forced to give up their interests in the first defendant together with the intellectual property rights owned by the first plaintiff) are void on the grounds they were procured under duress, undue influence, unconscionable conduct and or misleading and deceptive conduct in contravention of 1041H(1) of the Act, s 12DA of the ASIC Act and or s 18 of the ACL;

C. A declaration that the second plaintiff is entitled to hold 20% of the issued ordinary shares in the first defendant;

D. Rectification of the share register of the first defendant pursuant to s 175 of the Act to reinstate the second plaintiff as a member and to record that it holds a number of fully paid ordinary shares representing 20% of issued shares in the first defendant alternatively that it holds 6,805,555 fully paid ordinary shares in the first defendant;

E. A declaration that the affairs of the first defendant are being conducted contrary to the interests of the members as a whole and or are oppressive to, or unfairly prejudicial to, or unfairly discriminatory against the second plaintiff, or in the interests of and to the benefit of the second to third defendants and not the first defendant or its members;

F. An order that the second and or third defendants purchase the second plaintiff’s shareholding in the first defendant at fair value; Read the rest of this entry »

The postscript to Re Slodyczka & Farren Pty Ltd [2022] VSC 102 is a decision by Associate Justice Hetyey regarding costs of the application. 

FACTS

in the substantive judgment  the plaintiff’s application to wind up the defendant in insolvency was dismissed.

The relevant facts for the purpose of considering a costs order were:

• whilst the matter was commenced by originating process filed on 11 April 2021, there were delays and adjournments [2] resulted in two previous costs orders being made being:
  • on 7 July 2021, consent orders were made which, among other things, required the plaintiff to pay the defendant’s costs thrown away by reason of an adjournment of the hearing originally scheduled that day (‘the first costs order’).
  • at the next hearing date, on 27 July 2021, it was adjourned at the request of the defendant to enable it to put on supplementary material on the question of solvency, including audited accounts for the 2019/2020 and 2020/2021 financial years. The plaintiff’s costs of the hearing be reserved (‘the second costs order’).

The defendant opposed the winding up application on the following alternative bases [4]:

(a) service of the plaintiff’s statutory demand dated 3 February 2021 (‘the statutory demand’ or ‘the demand’) was defective;

(b) the defendant was solvent and could displace the statutory presumption of insolvency;

(c) the defendant should be given leave pursuant to s 459S of the Corporations Act2001 (Cth) (‘theCorporations Act’) to oppose the winding up application on a ground or grounds it could have relied on for the purpose of an application to set the demand aside. The grounds sought to be raised were: (i) there was a genuine dispute about the amount of the debt claimed in the statutory demand in accordance with s 459H(1)(a); (ii) the defendant had an offsetting claim for the purpose of s 459H(1)(b) of the Corporations Act; and (iii) the demand was defective and a substantial injustice would be caused to the defendant if the demand was not set aside pursuant to s 459J(1)(a) of the Corporations Act; and

(d) pursuant to s 467(1)(a) of the Corporations Act, the Court should dismiss the plaintiff’s application as a matter of discretion.

In the substantive judgment the court held that, [5]:

• the defendant failed to rebut the presumption of service of the statutory demand under s 29(1) of the Acts Interpretation Act 1901 (Cth).
• the defendant succeeded in displacing the statutory presumption of insolvency on the basis that it was cash flow positive and balance sheet solvent. The proceeding was dismissed on this basis.
• the defendant’s application under s 459S of the Corporations Act was not granted because the grounds sought to be raised in respect of the plaintiff’s debt were not material to proving solvency however  had the defendant failed to establish solvency the corut would haveultimately have granted it leave
• the defendant could not to pursue its argument that the Court should dismiss the plaintiff’s application in accordance with the Court’s discretion under s 467(1)(a) of the Corporations Act because of a lack of proper notice to the plaintiff Read the rest of this entry »

In Yuanda Vic Pty Ltd v Facade Designs International Pty Ltd [2020] VSCA 269 the Court of Appeal granted a stay of payment pending hearing of an appeal.  It is an interesting and valuable decision because it is a comprehensive analysis of the principles associated with making a stay application.  It is also notable because the application was successful, a difficult result to achieve normally. 

FACTS

Under a supply and installation agreement dated 13 April 2018 (‘the Contract’), the respondent, (“Facade Designs”) agreed to  instal  façade elements manufactured and supplied by the applicant (“Yuanda”) as part of the construction of commercial and residential towers at 447 Collins Street known as ‘the Arch on Collins’ (‘the Project’) for the price of $14.5 million [5]. Facade Designs provided works from September 2018 until November 2019 when the Contract was terminated [6]. 

On 30 September 2019, Facade Designs provided a payment claim under s 14 of the Building and Construction Industry Security of Payment Act 2002 (‘the Act’) for $4,584,820.68 (inclusive of GST) (‘the Payment Claim’) [7].  Yuanda paid Facade Designs paid  $1,115,455 (inclusive of GST) on 2 October 2019, reducing the amount claimed to $3,469,365.58 [8].

Yuanda failed to provide a payment schedule to the respondent within 10 business days of receiving the Payment Claim, as contemplated by s 15 of the Act [9]. Pursuant to s 15(4) Yuanda became liable to pay Facade Designs the amount claimed on 30 October 2019  [10].  The applicant failed to pay the amount claimed [11]. Facade Designs conceded some reductions and  sought judgment pursuant to s 16(2)(a) of the Act [12].

The Court rejected Yuanda’s  contention that:

(a) the Payment Claim was invalid because it did not sufficiently identify the construction work or related goods and services to which the progress payments related within the meaning of s 14(2)(c) of the Act and as a consequence it was not liable to pay the amount under s 15(4) of the Act (‘the Adequacy of the Payment Claim’); and

(b) the Payment Claim included excluded amounts within the meaning of s 14(3)(b) and pursuant to s 16(4)(a)(ii) of the Act .

In relation to the excluded amounts issue the court held that, in determining Read the rest of this entry »

On 23 April 2020 in  Australian Information Commission v Facebook Inc the Australian Information Commissioner successfully obtained interim suppression and non publication orders and orders to serve outside Australia and substituted service against Facebook Inc.

This is the first of what is likely Read the rest of this entry »

In Omar Property Pty Ltd & Others v Amcor Flexibles (Port Melbourne) Pty Ltd [2019] VSC 446 the Supreme Court, per Mukhtar AsJ considered the principles of ambit of discovery and the use of redactions in a hard fought discovery application.

FACTS

The five-day trial dated was vacated because of three intervening discovery fights [1].

This decision related to the first fight.

The proceeding is a dispute over a commercial lease of industrial premises. The question is whether the defendant has validly exercised an option to renew its lease or is entitled to renew the lease. The plaintiff says Read the rest of this entry »

The Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 again highlighted the caution the courts are now taking in dealing with applications which determine a claim without trial such as summary judgment applications and default judgment applications. It is also a case which highlights the fact that pleadings matter. 

FACTS

Luo and Yang entered into the principal agreement, in October 2015 (the ‘agreement’) [8] for the stated purpose of:

to successfully obtain the 888 visa for Luo and her family to migrate to Australia and to be granted the Permanent Resident Visa (hereinafter referred to as ‘the Immigration Project’).

The agreement:

• was described as a partnership between Luo and Yang

Read the rest of this entry »

The High Court in Trkulja v Google LLC [2018] HCA 25 upheld an appeal from the Victorian Court of Appeal regarding a summary judgment application. It is a very significant decision in relation to pleading the of defamation when the imputations arise from search engine results.

FACTS

While not enamoured of the drafting the Court noted that the Appellant’s (Trkulja”) Amended Statement of Claim was  sufficiently comprehensible to convey that Trkulja alleged that:

• Google defamed him by publishing images which convey imputations that he:
  • “is a hardened and serious criminal in Melbourne”, in the same league as figures such as “convicted murderer” Carl Williams, “underworld killer” Andrew “Benji” Veniamin, “notorious murderer” Tony Mokbel and “Mafia Boss” Mario Rocco Condello;
  • is an associate of Veniamin, Williams and Mokbel; and
  • is “such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a website that chronicles crime in [the] Melbourne criminal underworld”[3].
• Google published the defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria, including several named persons, upon those persons accessing the Google website, searching for  Trkulja’s name or alias (Michael Trkulja and Milorad Trkulja), and then viewing and perceiving the images presented on-screen in response to the search [4].
• the allegedly defamatory matters  comprising two groups:
  • “the Google Images matter” and
  • “the Google Web matter” [5]
• some of the pages include an image that contains text stating, inter alia, “Google lawsuit in court”, “COLOURFUL Melbourne identity Michael Trkulja” and “Mr Trkulja an associate of Mick Gatto” [7]
•  the images matter and the web matter are defamatory of  Trkulja in their natural and ordinary meaning and  carry the following defamatory imputations:

Read the rest of this entry »