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SUPREME COURT OF VICTORIA COMMERCIAL COURT BULLETIN No. 4/2009

SUPREME COURT OF VICTORIA COMMERCIAL COURT BULLETIN No. 4/2009. Recent Judgments. Matter: Re AWB Limited (No 4) Judge: Robson J Date: 4/06/2009 Citation: [2009] VSC 315

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SUPREME COURT OF VICTORIA COMMERCIAL COURT BULLETIN No. 4/2009

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  1. SUPREME COURT OF VICTORIACOMMERCIAL COURT BULLETINNo. 4/2009

  2. Recent Judgments Matter:Re AWB Limited (No 4) Judge: Robson J Date: 4/06/2009 Citation: [2009] VSC 315 Subject: CORPORATIONS - Civil penalty proceedings by ASIC – Non-party discovery sought by ASIC – Application to further amend the amended statement of claim – Application to vacate trial date – Relevance of prejudice to defendant in delay – r 32.07 of Supreme Court (General Civil Procedure) Rules 2005. Click here for full text of judgment

  3. Matter:Redepay Pty Ltd v Net4U.com.au Pty Ltd Judge: Pagone J Date: 28/07/2009 Citation: [2009] VSC 316 Subject: CORPORATIONS LAW – Application to set aside statutory demand – Whether there is a genuine dispute or an offsetting claim – Mere assertions insufficient to establish genuine dispute. Click here for full text of judgment

  4. Matter:1144 Nepean Highway Pty Ltd v Leigh Mardon Australasia Pty Ltd Judge: Pagone J Date: 30/07/2009 Citation: [2009] VSC 317 Subject: CONTRACTS – Construction of clause providing for appointment of expert – Whether the parties must also agree to expert’s terms of appointment – Whether parties must do all that is necessary to give full effect to the agreement. Click here for full text of judgment

  5. Matter:Epworth Foundation v Healthcare Imaging Services (Victoria) Pty Ltd Judge: Judd J Date: 31/07/2009 Citation: [2009] VSC 293 Subject: CONTRACT – Services Agreement – construction – change in control of a party – termination for change in control - election to affirm – unequivocal conduct – delay - prejudice CONTRACT – Estoppel by conduct– assumption concerning legal position – silence - duty to warn – unconscionable conduct TRADE PRACTICES – conduct by silence – duty to warn – s 52 Trade practices Act 1974 (Cth) and s 9 Fair Trading Act 1999 (Vic) Click here for full text of judgment

  6. Matter:Re S & D International Pty Ltd (No 2) Judge: Robson J Date: 4/08/2009 Citation: [2009] VSC 341 Subject: CORPORATIONS – inquiry ordered into conduct of second defendant as receiver and manager of S&D International Pty Ltd and as agent in possession of land of the company – application of second defendant to adjourn inquiry and to defer date by which he is to file affidavits for the inquiry until Court of Appeal has heard and determined application for a stay of order for inquiry – application refused CORPORATIONS – practice and procedure – application to file and serve a third party notice – application withdrawn as the proceedings not commenced by writ or otherwise as referred to in r 11.05(1) of the Supreme Court (General Civil Procedure) Rules 2005 – application for directions in Corporations List for the filing and serving of the third party notice – directions given – r 11.05 of the Supreme Court (General Civil Procedure) Rules2005 Click here for full text of judgment

  7. Matter:Re AWB Limited (No 6) Judge: Robson J Date: 6/08/2009 Citation: [2009] VSC 330 Subject: CORPORATIONS – legal professional privilege – application by AWB Limited for access to documents - proceedings by ASIC against former managing director of AWB Limited seeking civil penalties – examinations conducted under s 19 of the ASIC Act 2001 and statements given to ASIC in relation to the affairs of AWB Limited – AWB Limited has reasonable grounds to believe that privileged and confidential information may be in the transcript of the examinations and the statements – transcripts and statements ordered to be discovered by ASIC to the defendant – application by AWB Limited to examine the transcripts and statements to assert claims of privilege – whether AWB Limited should be given a realistic and practical opportunity to assert and test is claims to privilege and confidentiality - application granted on terms Click here for full text of judgment

  8. Matter:BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH; Protec Pacific Pty Ltd v Steuler Industriewerke GmbH Judge: Habersberger J Date: 7/08/2009 Citation: [2009] VSC 322 Subject: TRADE PRACTICES – Misleading or deceptive conduct – Representation by supplier that a particular liner was suitable for use as a long term containment membrane for the concrete solvent extraction tanks at the Olympic Dam mine – Other representations about the liner – Whether made to installer of liner or to owner of mine – Reliance – Whether representations were misleading or deceptive – Causation – Loss and damage – Trade Practices Act 1974 (Cth) ss.52, 82. CONTRACT – Which company entered into contract bearing name of one entity and ACN of another. Click here for full text of judgment

  9. Matter:Elhan & Anor v Saykan & Ors (No 3) Judge: Hansen J Date: 10/08/2009 Citation: [2009] VSC 324 Subject: COSTS – Oppression case - Defendants offered $220,000 before trial to purchase second plaintiff’s shares and settle (different) proceeding with no order for costs - Plaintiffs rejected offer - Interlocutory order pre-trial that second plaintiff sell shares to defendants for $220,000 but reserving question of fair value of shares – Plaintiffs contended shares worth significantly more - Plaintiffs successful in establishing oppression – Fair value of shares ultimately held to be $224,826 – Whether plaintiffs acted unreasonably in rejecting offer and pursuing litigation – Plaintiffs did not act unreasonably in the circumstances – Discretionary factors – Plaintiffs entitled to costs. Click here for full text of judgment

  10. Matter:von Risefer v Mainfreight International Pty Ltd Judge: Ashley JA and Beach AJA Date: 13/08/2009 Citation: [2009] VSCA 179 Subject: APPLICATION – Leave to appeal – Winding-up order – Application to terminate or permanently stay winding-up order – Defective service of statutory demand – Winding-up order made on notice but in absence of defendant company – Relevance of insolvency and issues of commercial morality and public interest to application to terminate or permanently stay winding-up order – Corporations Act 2001 s 482 (Cth). Click here for full text of judgment

  11. Matter:TAB Limited v Racing Victoria Limited; TAB Limited v Greyhound Racing Victoria Judge: Davies J Date: 13/08/2009 Citation: [2009] VSC 338 Subject: STATUTE – Construction of transitional provision between repealed and current legislation – Whether transitional provision created a statutory fiction that “approval” under earlier section amounts to a “grant of approval” under later section – Cl 18.2 in Part 18 of Schedule 7 Gambling Regulation Act 2003 – Division 5A Gambling Regulation Act 2003. STATUTE – Construction – Power to vary approval – Imposition of a fee as a condition of approval – Validity – Whether specification of an actual amount was required by statute – Whether the fee imposed was sufficiently certain – Whether a requirement that the fee be a fair and reasonable economic contribution – Division 5A Gambling Regulation Act 2003.

  12. TAB Limited v Racing Victoria Limited; TAB Limited v Greyhound Racing Victoria (continued) Subject: ADMINISTRATIVE LAW – Retrospective operation of decision – Whether retrospective component severable. ADMINISTRATIVE LAW – Procedural fairness – Whether duty to afford the opportunity to be heard owed – Whether imposition of a fee condition a policy decision not attracting the requirement of procedural fairness. CONTRACT – Variation of terms – Whether unilateral variation of the fee condition permissible. WORDS AND PHRASES – “Under”. Click here for full text of judgment

  13. Matter:Sampford IXL Pty Ltd & Anor v Whirlpool (Australia) Pty Ltd Judge: Byrne J Date: 14/08/2009 Citation: [2009] VSC 335 Subject: CONTRACT – interpretation of contract – distributorship agreement – provision that upon termination supplier “will take on any unexpired warranty liabilities of” distributor – what warranty liabilities? – matrix evidence – evidence of facts known to predecessors of negotiating parties – whether available as an aid to construction. Click here for full text of judgment

  14. Matter:Re Mento Developments (Aust) Pty Ltd (in liq) Judge: Robson J Date: 17/08/2009 Citation: [2009] VSC 343 Subject: CORPORATIONS – directions - court appointed liquidator’s application for directions under s 479(3) of the Corporations Act 2001 – jurisdiction of the court – whether the court is entitled to give directions where the questions relate to disputed claims against a third party – whether the court in its discretion should give directions where the questions relate to disputed claims against a third party – questions going to issue whether company in liquidation entitled to indemnify itself out of trust assets that it holds on trust for unit trusts – relevance of adversarial nature of proceedings – finding that court has jurisdiction and should give directions sought – limitation on findings to those necessary to give a direction on whether liquidator justified in administering the winding up on basis that company executed guarantee at trustee – application granted and directions given – s 479(3) of the Corporations Act 2001

  15. Re Mento Developments (Aust) Pty Ltd (in liq) (continued) Subject: CONTRACT – guarantee – construction - whether executed personally or in capacity as trustee – evidence – admissibility of extrinsic evidence to establish capacity Click here for full text of judgment

  16. Matter:Amanatidis v Syed & Anor Judge: Hansen J Date: 20/08/2009 Citation: [2009] VSC 350 Subject: PROPERTY LAW - Sale of land – Residential units and car spaces on strata titles – Units owned by one or other vendor solely – Contract of sale in form of joint sale by vendors – Whether contract effective – Non-payment of residue – Rescission by vendors – Whether effective – Purchaser seeks specific performance. Click here for full text of judgment

  17. Current Cases To access the list of current cases in the Commercial Court please click on the link below: Supreme Court of Victoria - Commercial Court Current Cases Information about the Commercial Court is available on the Supreme Court website at: http://www.supremecourt.vic.gov.au

  18. Further Information For further information about this publication – including ordering additional copies or to make changes to your mailing address (including removal from the mailing list) – please contact the Supreme Court Library. Telephone: (03) 9603 6282 Facsimile: (03) 9642 0159 Email: sclib@supremecourt.vic.gov.au

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