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.
Author: Cameron Charnley
The rules of most Victorian courts permit a party, in certain circumstances, to obtain discovery of material prior to commencing proceedings. Like many rule-based tests, there can be some confusion about the requirements as well as the discretionary factors involved in obtaining preliminary discovery. The Supreme Court in a recent appeal decision has shed some light.
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?
Where one has a purported deed or a ‘heads of agreement’ type of document, when might that document be binding and when might it fall short? And when might someone who has not signed the document still be a ‘party’ to it?