Devine v Liu [2018] NSWSC 1453

PRACTICE AND PROCEDURE – applications – pleadings and particulars – application to amend statement of claim – strike out and summary judgment application – statement of claim pleaded claim concerning a director’s duty to prevent insolvent trading by company under Corporations Act 2001 (Cth), s 588G – where statement of claim did not plead how and when company incurred relevant debts – where statement of claim did not particularise the nature of reliance on the presumption of insolvency under Corporations Act 2001 (Cth), s 588E(4).

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – litigation funding – solicitors for the liquidator conducting proceedings on a “no win, no fee” basis.

PRACTICE AND PROCEDURE – applications – security for costs order – general principles as to ordering security for costs against plaintiff liquidator – liquidator and company as co-plaintiffs – whether the company is a necessary party to voidable transaction and insolvent trading claims under the Corporations Act 2001 (Cth) – discussion of whether the joinder of a liquidator as co-plaintiff prevents the Court from ordering security even if co-plaintiff company is insolvent.

PRACTICE AND PROCEDURE – costs – costs payable forthwith – difficulty in assessing costs in circumstances where statement of claim struck out but with leave for the plaintiff to re-plead claim.

Tim Castle and Sandrine Alexandre-Hughes represented the Defendant.

Reasons for the judgement can be found here.

Vivaldi v Dental Board of Australia [2018] NSWCATOD 159 (20 September 2018)

From Civil and Administrative Tribunal New South Wales.

COSTS – exercise of the discretion to award costs where appellant withdraws appeal.

KJ Young represented the Respondent.

Reasons for Decision can be found here.

Ozmen Entertainment Pty Ltd v Neptune Hospitality Pty Ltd (No 3) [2018] FCA 1411

ADMIRALTY – joint venture to operate hospitality business aboard vessel – agreement to charter and license vessel.

PRACTICE AND PROCEDURE – further interlocutory application for an order to appoint a receiver and manager to take control of a vessel and business operated on-board –balance of convenience – where the relationships between the parties have broken down – application granted.

PRACTICE AND PROCEDURE – interlocutory application for payment of profits made pursuant to a joint venture agreement – counter interlocutory application for shared costs pursuant to a joint venture agreement – where there are competing legal arguments concerning construction of the joint venture agreement and evidentiary questions that are to be determined at final hearing – interlocutory applications refused.

PRACTICE AND PROCEDURE – application for security for costs – where it is conceded that security for future costs is payable but the plaintiffs contest payment of security for past costs and contend that funds held in trust pursuant to Court order should stand as security for costs of the proceeding – application for security for past costs refused – plaintiffs ordered to provide security for future costs, which are not to be payable from the funds held in trust.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Wondal v Inspector-General in Bankruptcy [2018] FCA 1278

From the Federal Court of Australian

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees – whether Tribunal denied the applicant procedural fairness – whether there was no evidence to support findings made by the Tribunal – whether Tribunal failed to consider applicant’s submissions – whether Tribunal’s reasons were inadequate.

David Rayment represented the Respondent.

Reasons for judgment can be found here.

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 (24 July 2018)

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion.

David Rayment represented the Plaintiffs/Respondents.

Reasons for the decision can be found here.

Rekrut v Champion Homes Sales Pty Ltd [2018] NSWCATAP 162

From the Civil and Administrative Tribunal New South Wales:

APPEAL – costs – costs order made by Tribunal after Appeal Panel has allowed appeal in part – whether costs order should be set aside

Michelle McMahon represented the Appellants.

Reasons for Decision can be found here

Commonwealth Bank of Australia v Daleport Pty Ltd (in receivership) (No 5) [2018] NSWSC 1935

COSTS – application for costs order entered be varied – application for gross sum costs order – where defendant rejected the plaintiff’s offer of payment and sought assessment of costs – where plaintiff previously sought assessment of costs and opposed any lump sum quantification - whether plaintiff’s position should be characterised as a capitulation.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Illusory consideration and uncertain terms – arguments of last resort?

Kirralee Young has had a success in a shareholder dispute in the Court of Appeal regarding illusory consideration and uncertainty in respect to the interpretation of a shareholders agreement. 

The decision relates to a dispute between the parties relating to the meaning and operation of certain funding provisions in a shareholders agreement. The agreement regulated their rights as equal shareholders in a company. In broad terms, one shareholder provided the intellectual property and expertise for the business and the plaintiff was required to provide funding. Despite the agreement being in place for over 12 months, one shareholder contended that the agreement was void and uncertain because the funding provisions were illusory and uncertain in the sense that they did not impose a definitive obligation on the other party to provide such funding. i.e there was an unfettered discretion.

It cannot be doubted that promises with no substance, or that are ‘illusory’, are not good consideration. For example, A cannot promise to buy B’s goods in return for ‘whatever A feels like paying’. This type of consideration is discretionary and without substance and is therefore not good consideration.  Nor can it be doubted that a promise is not illusory because the promisor has some discretion in how its obligations are to be performed. It is only necessary that there be an obligation that the promise be performed and that the discretion is contained within the defined parameters. 

The question in this case was whether the discretion was completely unfettered. The plaintiff argued that it did not have a completely unfettered discretion as to the provision of funding because it was required to act in good faith under the agreement and pursuant to duties arising at common law and in equity.  The defendant argued these duties were not fetters on the discretion because they could not be specifically enforced.

The Court of Appeal found in favour of the plaintiff that the consideration was not illusory consideration nor were the provisions uncertain and ultimately that the shareholders agreement was valid. They further found that good faith obligations can act as a fetter and that they did not need to be specifically enforceable. It was enough that those obligations could sound in damages only.

Further details of the case can be found here .

Hopkins v Symvania Waterways Limited & Ors

Steven Cominos appeared for the 4th and 5th defendants on a motion to dismiss a claim against them for unconscionable conduct and misleading or deceptive conduct. The claim was dismissed in its entirety by Pembroke J on 25 May 2018.

Public Inquiry under the Charitable Fundraising Act 1991 into RSL Lifecare Limited, RSL NSW & Ors

Steven Cominos appeared on behalf of 2 former directors of RSL Lifecare Limited at the public inquiry under the Charitable Fundraising Act 1991 (NSW) (CFA). During the inquiry, various allegations were made against RSL Lifecare and a number of its former directors regarding the use of funds derived through fundraising activites, in relation to compliance with the CFA’s requirements and regarding the exercise of their fudicuary duties in receiving consultancy fees. Neither of the former directors for whom Mr Cominos appeared were referred to any regulatory body for investigation or further action.

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.

Lever v Attorney General of NSW [2018] NSWSC 838 (29 May 2018)

EQUITY – Charitable trusts — private international law — validity of testamentary gift to a foreign executor applying the gift to a charitable purpose in a foreign jurisdiction — how the foreign charitable purpose is to be assessed — Hague Convention — evidence of foreign law.   

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Dunphy v Russell [2018] NSWSC 721

TRUSTS – father contributes funds to the acquisition of a property by his daughter – whether the contribution was an investment or gift – whether the parties intended a trust to be created.

Elisabeth Peden and Jennifer Mee represented the Plaintiff.

Reasons for the decision can be found here.

Commonwealth Bank of Australia v Daleport Pty Limited (in receivership) (No 4) [2018] NSWSC 842

COSTS – application for payment forthwith – consideration of relevant factors – protracted dispute as to discovery – where refusal to order payment forthwith would stultify defence of bank’s claim – whether defence of claim futile – whether payment forthwith should be refused on that basis.

Tim Castle represented the Plaintiff.

Reasons for the judgement can be found here.

Gooley v NSW Rural Assistance Authority [2018] NSWSC 593

EVIDENCE – opinion evidence – exceptions – expert opinion – advance rulings – whether expert opinion admissible – whether parts of lay evidence admissible.

PRACTICE AND PROCEDURE – pleadings – whether case propounded in affidavits beyond pleadings – whether pleadings embarrassing.

Tim Castle represented the Defendant.

Reasons for the judgement can be found here.

Wright v Stevens [2018] NSWSC 548 (3 May 2018)

TRUSTS and TRUSTEES - Trust created by Will - Whether private discretionary trust or charitable trust - Powers, duties of trustee of Trust - Potential object of exercise of discretionary power of appointment - Whether has a right to seek information, seek inspection of documents in the possession of the Trustee and accounts - Approach the Court should take to application by a potential object of exercise of discretionary power for an order directing trustee to disclose information and permit inspection of documents relating to the Trust – Whether duty to account to potential object of exercise of discretionary power of appointment - Trustee resisted claim for information, inspection of documents and accounts.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here. 

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97

From the New South Wales Civil & Administrative Tribunal Appeal Panel:

COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle

COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle

Michelle McMahon appeared for Adam Rekrut and Sandra Scott.

QBE Underwriting Ltd as Managing Agent for Lloyds Syndicate 386 v Southern Colliery Maintenance Pty Ltd (2018) 97 NSWLR 459

INSURANCE— Liability insurance — Exclusions — Where insured entered agreement with third party containing warranties and agreement to indemnify — Whether insured would have been liable in absence of such agreement.

INSURANCE —  Insurance Contracts Act 1984 (Cth) — Duty of disclosure — Scope and duration — Where insurer disclosed to insured letter warning of possible obligations to indemnify third parties —  Insurance Contracts Act 1984  (Cth), s 21.

CONTRACTS — Construction — Interpretation — “‘For’” — “‘In respect of’” — Whether contract of insurance extended to indemnity for adverse costs order.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Vanguard Financial Planners Pty Ltd & Anor v Ale & Ors [2018] NSWSC 314

CONTRACT – construction – whether the Court can have regard to prior negotiations which indicate parties’ subjective intention in construing contract – implied terms – whether term is necessary for business efficacy or so obvious that it goes without saying – whether term is to be implied into the contract.

CONTRACT – repudiation – whether party has indicated a refusal to perform the contract – whether acceptance of repudiation was communicated to the promisor.

CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss 180, 181, 182 and 183 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty to avoid improper use of information – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether conduct of Defendants amounted to breach of statutory duties.

EQUITY – general principles – fiduciary obligations – where business venture has been consensually terminated – whether parties to venture owe fiduciary duties to one another – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether director of company breached no conflict and no profit duties – whether director of company breached best interests and proper purposes duties – whether director of company breached equitable duty of confidentiality.

TRADE PRACTICES – application of Restraints of Trade Act 1976 (NSW) s 4 – where contractual restraint of trade in broad terms – whether restraint of trade is void for breach of public policy.

TRADE PRACTICES – misleading or deceptive conduct claim under s 18 of the Australian Consumer Law – whether representations made are misleading or deceptive – whether representations among directors of a company are made in trade or commerce.

Jennifer Mee was one of the counsel representing the Defendants.

Reasons for the decision can be found here.

Stojic v Stojic [2018] NSWCA 28

In the New South Wales Court of Appeal:

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

David Smallbone appeared with David Rayment for the Appellant.