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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Breach of contract: can you sue for the distress and inconvenience?
Where there has been a breach of contract, in what circumstances can the innocent party sue for damages for distress, anxiety and depression arising from the breach? What about the inconvenience caused by the breach? The Court of Appeal in the recent case of Archibald v Powlett [2017] VSCA 259 sheds some light on these issues.
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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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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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Residential tenancies and the 'sharing economy'
The Victorian Supreme Court last week ruled on an appeal from a decision of the Victorian Civil and Administrative Tribunal regarding the proper characterisation of an 'Airbnb' arrangement at property the subject of a residential tenancy.
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Seeking security for costs? Be quick, and ask the right questions
The Court of Appeal in Australian Dream Homes Pty Ltd v Stojanovski recently considered an application for security for costs. The Court’s decision provides some guidance for parties seeking to make such applications, highlighting in particular the importance of enquiring about the financial health of the opponent as well as the relevance of delay.
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What can ‘rescission’ of a contract really achieve?
The Court of Appeal recently considered the effect of rescission and, in particular, its quality as an equitable remedy. The case of Gutnick v Indian Farmers Fertiliser Cooperative Ltd shows how a judicial declaration of rescission can help a party seeking restitution.
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Doggett v Commonwealth Bank of Australia: What does it take to be a diligent and prudent banker?
The Victorian Court of Appeal last week handed down its judgment in Doggett v Commonwealth Bank of Australia, a case which bears significant implications for the lending industry and which helps to answer the question, 'What does it take to be a diligent and prudent banker?'.
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Discovery obligations and sanctions under the Civil Procedure Act
The significance of the Civil Procedure Act 2010 and the role of legislative intent in determining its scope have been reiterated in a recent decision of the Victorian Court of Appeal.
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