A landlord seeking to regain possession of retail premises where a tenant has breached the terms of the lease is required to follow certain steps in first giving notice to the tenant. Landlords should give proper notice not only in the interests of fairness to a tenant but also in order to avoid regaining possession of premises unlawfully. The recent decision in CB Buffett (Burwood) Pty Ltd v Delloyd Pty Ltd (Building and Property) [2020] VCAT 1234 involved an application for relief against forfeiture and illustrates the importance of a landlord giving proper notice to a tenant. The decision also demonstrates that a notice which specifies multiple defaults cannot be struck down as invalid simply because the landlord fails to substantiate some of those defaults.

In ruling on the admissibility of expert evidence in a proceeding involving allegations of directors’ breach of fiduciary duties, the Supreme Court has addressed some key issues relating to expert witnesses. The Court’s decision in Finance & Guarantee Company Pty Ltd v Auswild (Expert Evidence Ruling) [2019] VSC 665 serves as a reminder of the importance of independence and candour in an expert. The ruling also reiterates the need for transparency in an expert report so far as assumptions and material relied upon are concerned. It is a useful decision to bear in mind whether one seeks to admit or to exclude expert evidence in a proceeding.

The New South Wales Court of Appeal has allowed an appeal against orders for distribution from a co-mingled fund held by insolvent entities and, in doing so, has provided guidance for liquidators and creditors alike on the various methods for distribution and the principles of tracing.

A person who succeeds in recovering a ‘debt or sum certain’ in litigation is entitled to interest on that amount unless there is good cause to the contrary. But what qualifies as a ‘debt or sum certain’? If you sue for an amount in the form of compensation and are paid it before judgment is entered, have you ‘recovered’ that amount? The Victorian Court of Appeal has recently addressed these concepts in the case of Carbone v Melton City Council [2020] VSCA 117.

A cooling off period can be a saving grace to a purchaser of residential property who no longer wishes to proceed with the transaction. Issues can arise where a purchaser exercises a right to cancel the purchase during the cooling off period but then decides instead to proceed with the purchase. Does the contract survive? What happens to any deposit which has been paid? The Supreme Court has addressed such a situation in the case of Stewart v White [2020] VSC 116.

Parties to commercial contracts enjoy — and are burdened by — the implied duty that they cooperate in carrying out their respective ends of the bargain so that they each can have the benefit of the contract. The situation can become complicated where the contract expressly contains a mechanism for one party to seek the other’s consent to a particular course of action. Where the contract states that consent must not unreasonably be withheld, is there a binding promise not to unreasonably withhold consent? And how does the implied duty to cooperate interact with the concept of ‘reasonableness’? The Full Court of the Supreme Court of South Australia recently considered such issues.

Fiduciary duties can arise in a multitude of relationships. An issue can arise as to whether, in light of the terms of their bargain, parties in a contractual arrangement owe fiduciary duties to one another including in circumstances where the contract relates to a joint venture. The Queensland Court of Appeal has ruled on such a case and has set out some useful points to consider when determining whether a given contractual relationship involves a fiduciary relationship.

A person seeking to regain possession of property can apply to a court for summary relief in circumstances where they have an interest in property which is being occupied without their licence or consent. The situation can become complicated, however, where the person in possession of the property and against whom the summary proceeding is brought claims an equitable interest in the property pursuant to a trust. In the case of Lu v Yu [2019] VSC 499, the Supreme Court recently considered such a circumstance and made some important comments about the interaction between trust law and possessory rights.

Practitioners may be aware of the ‘rule in Jones v Dunkel’ and the way this can impact the decision to call witnesses at trial. Practitioners might not be aware, however, of the intricacies of the rule and the way it ought be applied. A recent decision of the Supreme Court provides a useful caption of the rule and its relevant principles.

Among the more common forms of relief sought in civil litigation are claims for payment of debt and claims for damages. While these are distinct remedies with their own elements, they are at times liable to be conflated or confused. The decision of the Victorian Court of Appeal in Yang v Finder Earth Pty Ltd [2019] VSCA 22 illustrates how both the pleading of a cause of action and the framing of the relief sought can affect a party’s procedural rights. The decision serves as a reminder of the importance of clear and thoughtful pleading when formulating claims.

Where the owner of goods gives possession to a bailee and the bailee then wrongfully pledges the goods to a third party, is that third party liable to the owner for conversion of the goods? Will mere possession and control of the goods suffice to establish conversion, or is something more required? The Court of Appeal in Sell Your Gold Pty Ltd v Australian Diamond Trading Corporation Pty Ltd [2018] VSCA 355 considered those questions and, in doing so, raised concerns about the lack of clarity in the law and the pressing need for legislative reform.

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.