The Commercial Bar Association of Victoria Inc. A0120851O
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’.
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.
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.
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).
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.
This appeal concerned the scope of a contractor’s contractual obligation to obtain insurance for the benefit of both itself and its principal.