The Commercial Bar Association of Victoria Inc. A0120851O
A contractual provision which had the effect of excluding liability for damages for misleading or deceptive conduct under s 236 of the Australian Consumer Law if the complainant failed to give a notice of the proposed claim within a prescribed time limit was found to be unenforceable. Such a provision was also found to be ineffective in a “no transaction” case.
A “revised” payment claim, for a different sum, served one day after another payment claim had been served was invalid because it was held to be a second payment claim and therefore in contravention of s 14(8) of the Building and Construction Industry Security of Payment Act 2002 (Vic) which prohibits more than one payment claim being served in respect of the same reference date.
Arbitral tribunals have the ‘competence’ to make rulings on their own jurisdiction under s 16 of the CAA (and Model Law). However, within 30 days after the ruling, a party can seek a review of that decision by asking the Court to decide the matter (s 16(9)). The Supreme Court of Victoria has held, by reference to international authorities, that such a review is by way of hearing de novo.
Court upholds VCAT decision to allow builder to recover on quantum meruit basis (after wrongful repudiation by owner), based exclusively on evidence of quantity surveyor; and finds that s 38 of the Domestic Building Contracts Act 1995 (Vic) does not apply to quantum meruit claims.
The Queensland Court of Appeal upholds an arbitrator’s award despite procedural missteps – no “real unfairness” or “practical injustice”.
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.
Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication determination quashed – failure to give adequate reasons
The High Court has read down a statutory secrecy provision that purported to shield information from production to a court on judicial review. In doing so, it has confirmed that s 75(v) of the Constitution protects more than simply the right to commence proceedings for judicial review.
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.
Just before Christmas last year Wigney J dismissed a cartel case in which the ACCC alleged that Cussons (and the other major laundry detergent manufacturers) had colluded when they simultaneously transitioned all their detergent products from a standard formula to an ‘ultra-concentrated’ formula (with concomitant repackaging and re-pricing). The case is on appeal.
The Court of Appeal’s recent decision in Racing Victoria Limited v Kavanagh addresses the state of knowledge required of a trainer to establish an administration offence under the Rules of Racing. The decision will be of interest to those following one of the biggest horse doping scandals in Australian history involving trainers with links to the Aquanita Racing stables.
The Supreme Court of Victoria has found that a one-off special purpose company, incorporated for the sole purpose of carrying out a property development, was “in the business of building residences”, and therefore the Security of Payment Act applied to the dispute.
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.
This article provides a comprehensive summary of the three Practice Guidelines that have been published by the Financial Services Royal Commission.