Peter A Clarke

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:

•  ‘a genuine dispute’ uses ordinary English words and its meaning Read the rest of this entry »

On line tracking can be irksome if not alarming for those who want some anonymity in searching the net.  It is a key privacy concern as Read the rest of this entry »

In the United States privacy protection is as much a focus at the state level as the Federal level.  Unfortunately at the Federal level the law has not changed for some time and when it does it tends to respond to a particular public policy crisis or concern.  Hence there is strong protection on Read the rest of this entry »

Data leakage and identity theft is a constant and ubiquitous problem.  Under Privacy Principle 11 of the Privacy Act an organisation or agency has obligations to maintain data security.  That deals with hacking or other unauthorised access, use and disclosure of personal information. For a recent example see Cybersecurity expert says little risk from Butler data breach which despite the headlines reports on hackers accessing records of 163,000 individuals who were students, employees, applicants and alumni of Butler University, Indianapolis, United States.

The other side of the problem is inadvertent release of information by individuals through phishing, spear fishing and other scams to obtain personal information and use that to defraud, blackmail or extort individuals.  The latter situation is highlighted in Personal data sold to scammers on black market.

The ABC report highlights not only the emotional distress associated with sensitive personal information being used against an individual but the reputational damage done to agencies, in this case the Australian Taxation Office whose name was used in vain by the scammers. Interestingly the story highlights that last week, 24 June, the Auditor General found that seven government agencies are vulnerable to cyber attacks.  Compliance in the private sector is anecdotally quite patchy.  Ineffective regulation in the past has lead to Read the rest of this entry »

In Gaining Insurance, Losing Privacy the Atlantic reports on a quirk in the provision of health insurance in the United States which compromises individuals privacy.  Many people have health insurance as part of their parent’s health plan, usually through work.  Accordingly the insurance company sends forms to the insurance policy holder setting out payments under the policy even if those payments relate to treatment of others in the family.  Details of treatment provided is sensitive and intensely private information.  Providing enough details to another Read the rest of this entry »

The current focus on inadvertent data leaks is upon losing USB sticks and memory cards and the theft of  laptops. The Information Commissioner’s office reports that the loss of documents inadvertently left in a filing cabinet which was then sold to a member of the public is just as much a problem. In Prison service warned after Maze records sold at auction the ICO reports on the prison service of Northern Ireland selling a filing cabinet at auction. The person who purchased the filing cabinet found some very sensitive records regarding the inmate and prison officers. Given the reorganisation of the prison service, with the incident occurring under the watch of the predecessor, and that the incident predated the powers of the ICO to take stronger action the ICO issued a warning and the Department of Justice entered into an undertaking.

Recycling and selling old office equipment is not a new phenomanon.  There needs to be proper Read the rest of this entry »

CNN in high tech peeping drone terrifies woman has a report on a drone engaging in privacy invasive conduct.  In this case hovering near a window of a resident who was in a state of undress.  Such potential has long been acknowledged and the reality is here and reported upon from time to time.  This report highlights the actuality very starkly.

Protections in the US for an individual tend to be greater than Australia Read the rest of this entry »

Yesterday the US Supreme Court in Riley v California handed down a very important decision on privacy, regarding the right of a police officer to search digital information on a cell phone who had been arrested.   Earlier this month the Canadian Supreme Court handed down a privacy related decision in Spencer v R & ors regarding accessing internet search history from an ISP without a warrant.  Both are significant and will have a along lasting impact on their own jurisdictions and beyond.  Both should be required reading by those who want a more effective privacy regime in Australia. The underpinnings of each decision, the Bill of Rights in the US and the Canadian Charter and its privacy legislation, differ to those in existence in Australia but the principles and analysis are both apposite.

While a further analysis is required the key findings in Riley, a unanimous decision, are that:

 (a) a warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment ’s warrant requirement.

(b) the Court declined to extend the exception to searches of data stored on cell phones.  The Court generally determines whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” The search of digital information on a cell phone does not further the government interests  and implicates substantially greater individual privacy interests Read the rest of this entry »

The Washington Post has undertaken a fascinating and comprehensive 3 part report on drones  with

• part one: war zones;
• part two: domestic air space; and
• part 3: near misses.

The issues in the US are the same as those in Australia, a rapidly evolving technology which is finding more and more uses within the community and a near paralysis by Federal Government and regulators to deal with it.  In the US the States are stepping in, for good and bad, and regulating the use of drones in their jurisdictions.  In Australia the Civil Aviation Safety Authority has Read the rest of this entry »

Under the Privacy Act individuals should have the ability to either be anonymous or use a pseudonym when dealing with organisations or agencies except in some circumstances.  Australian Privacy Principle 2 encompasses this entitlement.  It provides:

2.1 Individuals must have the option of not identifying themselves, or of using a pseudonym, when dealing with an APP entity in relation to a particular matter.

2.2 Subclause 2.1 does not apply if, in relation to that matter:

a.   the APP entity is required or authorised by or under an Australian law, or a court/tribunal order,   to deal with individuals who have identified themselves; or
b.   it is impracticable for the APP entity to deal with individuals who have not identified themselves or who have used a pseudonym.

The exceptions under 2.2 at first glance seem to dilute the effectiveness of APP 2 however the Privacy Commissioner’s Guidelines restricts the claim of impracticability to 2.2(b) to fairly limited types of situations and ones where anonymity or pseudonymity is reasonable.  It is a very poorly understood and appreciated APP and considerable work will be done to have organisations comply.

The other issue which is complementary to the legal right/ability to anonymous communication is the technical ability to anonymise Read the rest of this entry »