The dispute in Kennedy v Proctor [2021] VSC 521 involved, at its heart, a simple question: had a competition horse, purchased by one friend for another and claimed to have been a gift, in fact been a gift? Of greater significance to appellate practice, however, the case demonstrates the difficulty in seeking to overturn a court’s decision on grounds of its assessment of trial evidence. The decision is illustrative, therefore, of the tasks parties face either in prosecuting or in defending against such an appeal.

Harris v Harris [2021] VSCA 138 involved a claim of proprietary estoppel arising from a series of promises made by a father to bestow land on his sons. The issues on appeal focused on whether the trial judge’s decision to declare a promisee’s entitlement to inherit the land was disproportionate in satisfying the requirements of conscientious conduct. In answering that question, the Court of Appeal identified and applied a number of key principles guiding the award of remedies for proprietary estoppel.

The case of Baba v Sheehan [2021] NSWCA 58 involved a challenge to the validity of an exercise of power of removal and appointment of a trustee. In dismissing a claim that the power had been exercised for a foreign or extraneous purpose, the New South Wales Court of Appeal has provided guidance on the scope of trust powers and the importance of intention and good faith when ascertaining the validity of the exercise of a power.

The Australian Consumer Law contains provisions prohibiting unconscionable conduct in the course of trade or commerce. Chief amongst those are sections 20 and 21. In Good Living Company Pty Ltd as trustee for the Warren Duncan Trust No 3 v Kingsmede Pty Ltd (Good Living Company) [2021] FCAFC 33, the Full Court of the Federal Court described not only the principles relating to unconscionable conduct generally but also the different approaches to determining contraventions of sections 20 and 21.

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.