Corporations

Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618

CORPORATIONS – application to set aside a statutory demand or in the alternative for a permanent injunction – where creditor has refused to assign securities – whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) – whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt – whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction – application allowed.

David Rayment represented the Plaintiff.

Reasons for the decision can be found here.

Baca v Union Standard International Group

Steven Cominos appeared for the Respondent, a margin FX issuer, in an international arbitration involving a claim brought by a former client. The Respondent was successful in upholding its decision to confiscate the claimant’s profits relying on the terms of its product disclosure statement. Those terms permitted the confiscation of profits due to the claimant having engaged in price latency arbitrage trading and its failure to disclose its use of plug-in software when executing margin FX trades on the Respondent’s platform. All the claimant’s allegations of breaches of the Corporations Act by the Respondent and that the relevant contractual terms were ‘unfair terms’ under the ASIC Act were also rejected.

The Sharemarket College Pty Ltd & 2 Ors v ASIC [2016] AATA

FINANCIAL SERVICES – application to stay decision of ASIC – decision cancelled first applicant’s financial services license – applicant also operates Registered Training Organisation licensed by ASQA - utility of granting stay - prospects of success – public interest – consequences on application for review

FINANCIAL SERVICES – application to stay decision of ASIC – banning orders against second and third applicants who were responsible managers of financial service licensee – utility of granting stay - prospects of success – public interest – consequences on application for review

Dominique Hogan-Doran SC and Steven Cominos appeared for the applicants.

Great Investments Ltd v Warner [2016] FCAFC 85

CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth) 

EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution

EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice

CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act

Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave

Robert Angyal SC appeared for the successful appellant.

Caason Investments Pty Ltd v Cao [2015] FCAFC 94

Counsel | David Rayment

PRACTICE AND PROCEDURE – application for leave to appeal - application for leave to amend pleading - representative proceeding under Federal Court of Australia Act 1976 (Cth) Pt IVA – claim for compensation for loss or damage resulting from misstatement in, or omission from, disclosure document under Corporations Act 2001 (Cth) s 729 - claims of misleading or deceptive conduct - causation – market-based causation – whether primary judge erred in rejecting proposed amendments to reflect market-based causation case – whether the market-based causation case is a viable one in the context of the claim under s 729 - whether reliance is a necessary element under s 729 - leave to appeal granted – appeal allowed.

Corporations Act 2001 (Cth) ss 728729(1), 729(2), 1041H
Australian Securities and Investments Commission Act 2001(Cth) s 12DA 
Corporate Law Economic Reform Program Bill 1998 (Cth)
Fair Trading Act 1999 (Vic) s 9
Federal Court of Australia Act 1976 (Cth) s 31APt IVAs 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55