Commentary and case law from the Commercial Bar Association's finest.
This case note reviews a decision where a plaintiff, as corporate trustee in liquidation and claiming to be assignee of a right to recover a debt paid for by a guarantor, sought to enforce that right. The decision addresses the power of a former trustee as bare trustee to deal with trust assets and the powers of a liquidator of a bare trustee in similar respects.
A recent decision of the SA Court of Appeal illustrates the challenges facing a minority interest holder in a tightly held investment vehicle seeking to extricate itself from the venture on grounds including oppression.
In February, the Victorian Court of Appeal held that federal pre-selection disputes within political parties are justiciable; in March, the High Court refused special leave; and in April the NSW Court of Appeal expressly rejected the Victorian Court of Appeal position.
This note summarises last year’s High Court decision in Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd (2021) 395 ALR 209 which finally determined the fee dispute between Glencore and the Port of Newcastle’s private operator.
If you are not a party to a contract, but you are affected by its terms, can you go to court to get a declaration about what the contract means?
In February 2020, the plaintiffs commenced proceedings in the Supreme Court against Bald Hills Wind Farm for nuisance. The Court found that turbine noise amounted, intermittently at night, to a substantial and unreasonable interference with the plaintiffs’ enjoyment of their land.
Citta v Cawthorn concerns the limits on jurisdiction of State tribunals (like VCAT) which are not courts of a State. The case explains the scope of matters arising under the Constitution or under a Commonwealth law. These questions are also relevant when determining whether federal courts have jurisdiction.
The prohibition against creditor-defeating dispositions under s 588FDB has been considered and applied for the first time since its introduction over two years ago. The conduct in question was found to be a brazen and audacious example of phoenixing and the Supreme Court of Victoria made orders voiding the relevant contract.
Building block modelling used to calculate a fair remuneration for aeronautical services provided to Qantas by Perth Airport.
In a decision with wide-reaching ramifications for the doctrine of unconscionability in Australia, the High Court in Stubbings v Jams 2 Pty Ltd [2022] HCA 6 comprehensively overturned the decision of the Court of Appeal, finding that lenders had engaged in both general law and statutory unconscionable conduct in their asset-based lending system, and were not redeemed by their ‘window dressing’ advice certificates.
The Federal Court’s decision in Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 considers whether the doctrine of legal professional privilege will apply to communications involving multi-disciplinary partnerships with legal and non-legal partners.
In a recent decision, Justice Anastassiou of the Federal Court held that liquidators of a solvent company may be entitled to the remedies available under the Corporations Act where that company is found to have made an unreasonable director-related transaction in breach of section 588FDA of the Act.
This note deals with a recent Federal Court decision in respect of freezing orders to prevent dissipation of assets in a subsidiary of a judgment debtor.
The High Court has reiterated the primacy of deterrence in determining civil penalties, reinstating the maximum penalty against a serial offender. The majority held that the purpose of deterrence was not constrained by notions of proportionality, that might otherwise be drawn from the criminal law.
In a members’ voluntary winding up, the Court exercised its powers under s 1322 of the Corporations Act 2001 (Cth) and s 90-15 of the Insolvency Practice Schedule (Corporations) to cure issues arising from the passing of important members’ resolutions by power of attorney.