The Commercial Bar Association of Victoria Inc. A0120851O
This case note reviews a decision of the Full Court of the Federal Court on the question of whether or not a person seeking to trace money or property must first establish the existence of a fiduciary relationship. In analysing the divergent views evident in a number of cases, the Court unanimously held that a fiduciary relationship is not a precondition.
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.
The Victorian Court of Appeal’s decision in Queenfield provides an uncommon example of success for a party who sought rectification of a contract for common mistake.
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?