Contract Hampered by Unfair Term
Edelman J’s decision in ACCC v Chrisco Hampers [2015] FCA 1204 provides guidance on how courts will approach the unfair contract term provsions of the ACL.
Homepage Blog
When the content of procedural fairness can be reduced to ‘nothingness’
The Court of Appeal has found that a failure to disclose the “substance” or “gist” of confidential information relied upon when making an exclusion order under the Racing Act 1958 (Vic) will not necessarily constitute a breach of procedural fairness.
Lender’s power to seek summary dismissal of a claim not straightforward in the case of alleged penalties
The Supreme Court of Victoria has partly granted an application by a financier, Equity-One, for summary dismissal of a claim brought against it by a borrower/guarantor. The decision considers the principles applicable to summary dismissal of a claim where allegations of Anshun estoppel and the doctrine of penalties are raised.
Insolvency practitioners’ remuneration: NSW Court of Appeal weighs into the controversy
A five-member bench of the New South Wales Court of Appeal recently heard argument in an appeal from a decision by Justice Brereton dealing with a liquidator’s remuneration claim.
The Lost Trust Deed
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.
Knowing receipt versus money had and received: what did the High Court mean in Farah Constructions?
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).
Insolvency Set-Off ousts Contractors’ Right to Summary Judgment in the Construction Industry
It has been held that automatic set off under s 553C of the Corporations Act 2001 (Cth) precludes companies in liquidation from taking advantage of the summary progress payment regime under the Building and Construction Industry Security of Payment Act 2002 (Vic).
Defamation update: Are hurt feelings a trivial matter?
To what extent are a defamation plaintiff’s hurt feelings relevant to the defence of triviality? On 20 October 2016, the majority of the Queensland Court of Appeal in Smith v Lucht [2016] QCA 267 definitively answered this question: the plaintiff’s hurt feelings are not relevant to the defence.
Chosen by the people: High Court dismisses challenge to suspension period of Electoral Roll
The High Court has found that a number of provisions of the Commonwealth Electoral Act 1918 (Cth) are not invalid as being contrary to ss 7 and 24 of the Constitution.
Arbitration: Temporary stay of related court proceedings
In exceptional circumstances, a court exercising its inherent jurisdiction will temporarily stay its proceedings pending the hearing and determination of a related arbitration between one of the parties to the court proceedings and a third party (say, an insurer) if there are compelling case management considerations justifying that course.
Court approval of settlements in liquidations
The Supreme Court has confirmed that declarations can be made approving settlement payments and the mere fact that a liquidator has acted on incorrect advice will not preclude a settlement payment being regarded as an expense “properly incurred” for the purposes of s 556(1)(a) of the Corporations Act.
Unreasonableness and illogicality: a tale of two grounds
In recent decisions of the Federal Court (Wigney J) and the NSW Court of Appeal (Bathurst CJ), unreasonableness jurisprudence has been relied on to reject the argument that the “illogicality” ground of judicial review is solely concerned with the end result, as opposed to findings or reasoning “on the way”.
The company will repay the loan when it can afford to! How certain is that?
The Supreme Court of Victoria has dismissed an application by a company to set aside a statutory demand which sought repayment of a loan which was to be repaid “as soon as practicable”. The Court held that the term as to repayment was void for uncertainty, and that the loan was accordingly immediately due and payable from its inception.
Electric flux: contentious issues in the National Electricity Market
An overview of current contentious issues in the National Electricity Market: Basslink outage and energy rationing in Tasmania, wholesale price spikes in South Australia, and the blocked acquisition of Ausgrid.