Commentary and case law from the Commercial Bar Association's finest.
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.
Mortgagees should be aware of the recent Court of Appeal decision in Burness v Hill [2019] VSCA 94, which considered the doctrine of marshalling.
The High Court has enshrined the ‘but for’ causation threshold in Barnes v Addy claims for knowing assistance of breaches of fiduciary duty.
The Victorian Court of Appeal and a Full Court of the Federal Court have each recently held that the statutory priority regime applies to the winding up of companies that act as trustees of trading trusts, confirming that employee claims and a liquidator’s remuneration and costs are priority debts. Special leave to appeal the Court of Appeal’s decision has been sought.
By a 2-1 majority the Court of Appeal held that a loan establishment fee of $26,625 was a penalty, arguably bucking the trend of decisions since the High Court’s judgment in Paciocco.
Can you prefer one creditor by arranging a third party loan, the proceeds of which are paid directly to that creditor, without the arrangement being void against your trustee in bankruptcy? “Yes” says the Full Federal Court – thus confirming an important distinction between personal and corporate insolvency.
Where seeking to recover land on the basis of a constructive trust arising from proprietary estoppel, when does that constructive trust arise? Does it arise when a court makes a declaration to its effect, or when the relevant cause of action accrues? And when should the court consider a lesser remedy instead of declaring a trust?
The Full Federal Court held that an employee owed fiduciary obligations not only to his employer (an established category of fiduciary relationship), but also to a subsidiary of his employer. The Court considered when fiduciary obligations will be found outside the established categories.
What is the appropriate method of distribution to competing trust beneficiaries whose funds have been mixed? This short article considers this question following the decision in Hannan v Zindilis [2016] VSC 723.
What should a trustee do if the trust deed governing the trust cannot be found? On what terms does the trustee hold the property? This short article considers these questions in the Victorian context.
Undaunted by the High Court’s decision in Farah Constructions, the New South Wales Court of Appeal has breathed life into common law claims for money had and received, holding that they can coexist with claims arising in circumstances covered by the well-recognised ‘first limb’ of Barnes v Addy (knowing receipt).
The Victorian Court of Appeal recently allowed an appeal against an order staying a proceeding brought by companies in liquidation against their former directors for knowingly assisting breaches of trust allegedly committed by the companies. The Court discussed the principles that operate in such circumstances.
In Crown Melbourne Ltd, the High Court held that a statement that lessees “would be looked after at renewal time” did not give rise to an estoppel in favour of the lessees. The judgments of the majority members of the Court should not distract attention from, or suggest a confinement of, the broad inquiry involved in assessing a claim of promissory (or proprietary) estoppel.
For the second time in four years the High Court has considered penalties, but the law remains somewhat fragmented and challenges remain for practitioners seeking to apply it in practice.