Getting in on the deal: nominees and novation of contracts

In the context of contracts for the sale of land, it is quite common to see clauses permitting the purchaser to nominate a third party to which title is to be transferred. Less common (one would hope) are issues arising from this, such as whether a right to nominate has been validly exercised and whether the contract of sale ultimately has been novated. Such issues recently arose for the New South Wales Court of Appeal’s resolution in Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282.

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Counting the (legal) costs of discontinuing a proceeding

Perhaps just as significant as the decision to commence a proceeding is the decision to discontinue it. While the discontinuing party may be liable to pay the other side’s costs, the matter is at the court’s discretion. The recent decision Supreme Court decision in Course v Hannan & Ors [2018] VSC 401 demonstrates some of the factors a court can consider when determining the question of costs of a discontinued proceeding.

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Moving to the front of the queue: prioritising and enforcing an administrator’s right to remuneration in a company wind-up

An administrator appointed over a company is entitled to payment of his or her remuneration, expenses and costs incurred in carrying out the role. To that end, an administrator can be indemnified out of the company’s property and can hold a lien over that property to secure the indemnity if the company is subsequently wound up.

The Supreme Court has recently ruled on two questions arising from such a scenario: does the lien extend to all the company’s property, or only that which the administrator caused the company to hold? And where does the administrator’s indemnity rank with the company’s other debts?

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Got a hunch? Navigating the rules of preliminary discovery

The rules of most Victorian courts permit a party, in certain circumstances, to obtain discovery of material prior to commencing proceedings. This is especially vital in assisting a party to ascertain who, or by what cause of action, it can sue. Like many rule-based tests, there can be some confusion about the requirements, as well as the discretionary factors, for obtaining preliminary discovery. The Supreme Court in a recent appeal decision in Alex Fraser Pty Ltd v Minister for Planning [2018] VSC 391 has shed some light.

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Take care not to waive privilege when pleading your case

Legal professional privilege provides vital protection to communications passing between lawyer and client. It is no surprise, then, that the issue of waiver of privilege is often hotly contested. In a recent decision, the Victorian Court of Appeal considered whether the way a party had pleaded its case had resulted in an implied waiver of privilege. The Court’s decision provides a useful analysis of the law relating to waiver and the potential circumstances in which a pleading can give things away.

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When enforcing a contract, what does it mean to be ‘ready, willing and able’ to perform your side of the bargain?

Where a party seeks to rely on another’s repudiation of a contract as a basis for suing, that party must show it has been ready, willing and able to comply with the contract. Matters can be complicated where the parties clearly disagree about how to interpret and comply with the contract, and even more so where the contract expressly requires the parties to use their best endeavours to see the contract fulfilled. The Court of Appeal in its recent decision in Bisognin v Hera Project Pty Ltd [2018] VSCA 93 has tackled these kinds of issues.

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Is your caveat defective? If you cannot fix it, perhaps seek an injunction instead

A caveator of land, when notified by the Registrar of Titles of the pending registration of an interest or transfer of the land, can seek a court order that such registration be delayed for a period of time. But what if the caveat itself is defective and cannot be fixed? The Supreme Court in TL Rentals Pty Ltd v Youth on Call Pty Ltd [2018] VSC 105 has recently clarified the law regarding the ability of the caveator to instead seek an injunction in such circumstances.

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Actions for recovery of land: the Court of Appeal on constructive trusts and limitation periods

Where seeking to recover land on the basis of a constructive trust arising from proprietary estoppel, when does that constructive trust arise? Does it arise when a court makes a declaration to its effect, or when the relevant cause of action accrues? And should the court consider a lesser remedy instead of declaring a trust? The Court of Appeal in McNab v Graham [2017] VSCA 352 answers those questions.

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Breach of contract: quantifying damages for a lost opportunity to ... lose money?

Where there has been a breach of contract, the innocent party can sue for damages including, where relevant, damages for the lost opportunity under the contract. In Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited [2017] QCA 254, the Queensland Court of Appeal has considered a scenario where the opportunity to earn a profit under the contract was affected by various contingencies and where there might ultimately have been a loss instead. The Court has addressed the question of law, namely, whether an innocent party to a breach of contract can suffer a compensable loss even where, had the contract proceeded, that party might have lost money.

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Contractual offer and acceptance: when can an exchange of emails be enough?

It is elementary to the law of contract that a binding contract requires an offer and acceptance of that offer by the respective parties. In the recent decision in Queensland Phosphate Pty Ltd v Korda [2017] VSCA 269, the task for the Court of Appeal was to determine whether, on the facts, such qualities existed in light of an exchange of emails. The Court’s decision serves as a reminder of the importance, when seeking to create a binding contract through informal means, of not leaving too much to guess-work.

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Appeals, ContractCameron Charnley
Going behind court judgments in bankruptcy proceedings: the High Court’s consideration

In Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28, the High Court has affirmed the position that a court’s discretion to go behind a judgment is not restricted to situations of fraud, collusion or a miscarriage of justice occurring at trial. In doing so, the majority was mindful of the importance of protecting in bankruptcy proceedings the interests of third parties — particularly other creditors — who do not participate in the trial and who later seek to rely on the bona fides of a judgment debt when a sequestration order is made.

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Enforcing an equitable charge against a bankrupt

The Full Court of the Federal Court has recently clarified the law regarding the ability of a secured creditor of a bankrupt estate to commence proceedings against the bankrupt pursuant to the Bankruptcy Act 1966 (Cth). In Morris Finance Ltd v Brown [2017] FCAFC 516 the Full Court considered the provisions of the Act and held that, as an exception to the general rule that a creditor requires leave of a court to bring a claim for a provable debt against a bankrupt, proceedings to enforce an equitable charge do not require leave.

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What have I signed up for? A recent exercise by the Court of Appeal in contractual interpretation

Where one has a purported deed or a ‘heads of agreement’ type of document, when might that document be binding and when might it fall short for lack of formality? The Victorian Court of Appeal in its recent decision in Nurisvan Investment Ltd & Anor v Anyoption Holdings Limited has provided some guidance, and the decision is of note for the way in which it uses evidence of post-contractual conduct in ascertaining the identity of parties to an agreement.

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Account of profits and accessorial liability: the Federal Court gives guidance on both

The Full Court of the Federal Court has recently determined an appeal relating to an order for an account of profits and a finding of accessorial liability for the conduct giving rise to those profits. The decision in Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited [2017] FCAFC 74 is noteworthy for the way in which it enunciates and applies the principles relating to the remedy of an account of profits, and discusses the distinction, and whether there is a distinction at all, between the equitable and the statutory tests for accessorial liability.

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Seeking an injunction? The court might award damages instead

A person may apply to a court for an injunction in order to prevent threatened or actual and ongoing infringement of that person’s legal rights. When hearing an application for an injunction, most courts have jurisdiction to award damages instead of, or together with, an injunction. The Queensland Supreme Court has recently provided some guidance regarding the circumstances in which a court might do so.

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Further clarity in the law of shareholder oppression

Shareholder oppression cases require a careful consideration of the circumstances in which the complaining shareholder has brought its claim. This is true in the context of closely-held, family-run businesses. The recent Victorian Supreme Court case of Peter Exton & Anor v Extons Pty Ltd & Ors illustrates such a scenario, and the Court’s decision is noteworthy for its exploration of a number of important factors in shareholder oppression cases.

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Setting aside a statutory demand — with proper material

When applying to set aside a statutory demand, one of the ways to do so is to show the existence of a ‘genuine offsetting claim’. The recent Federal Court decision in Gucce Holdings Pty Ltd v Bank of Queensland Limited illustrates a set-aside application made on such grounds, and is worth noting for the interface it has with the law of evidence and parties’ procedural obligations.

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What is a ‘retail tenancy dispute’? Navigating the statutory regime

Disputes regarding retail tenancies are typically the exclusive province of the Victorian Civil and Administrative Tribunal. Nonetheless, the Supreme Court of Victoria in the recent case of AMJE Pty Ltd v Mobil Oil Australia Pty Ltd held that the Court possesses jurisdiction in circumstances where, turning on a point of statutory interpretation, the plaintiff had made a claim that was not in fact a ‘retail tenancy dispute’ in the strict sense.

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