Commentary and case law from the Commercial Bar Association's finest.
In assessing whether the trial judge’s decision to declare a promisee’s entitlement to inherit the land was disproportionate in satisfying the requirements of conscientious conduct, the Court of Appeal in Harris v Harris identified and applied a number of key principles guiding the award of remedies for proprietary estoppel.
In dismissing a claim that the exercise of a power to remove and appoint a trustee was for a foreign or extraneous purpose, the New South Wales Court of Appeal has provided guidance on the scope of trust powers and the importance of intention and good faith when ascertaining the validity of the exercise of a power.
A rare case of rectification which arose because, two years after the sale of a half share in a motel business, the parties realised that their sale agreement had left $6m of debts ‘up in the air’.
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).