Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Case note on Agapitos v Habibi  WASC 47.
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Case note on Caffell & Falcon  FamCAFC 34.
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Case noted on Bugatti GmbH v Shine Forever Men Pty Ltd (No 2)  FCA 171.
Solicitors acting for financers and lenders in financing transactions must take care to avoid nasty surprises after settlement
Co-authored by Andrew Kirby and Kieran Hickie: The Court of Appeal has affirmed the importance of solicitors acting for mortgagees to ensure payout figures and settlement instructions provided to settlement agents are accurate. Following settlements of refinancing transactions, an outgoing mortgagee will not necessarily be prevented from asserting that settlement funds are insufficient to finalise settlement. Rather, they may demand the return of a discharge of mortgage handed over at settlement on the basis the borrower has not complied with its obligation to pay out the registered mortgagee in full.
Guarantors as ‘privies’ of a principal debtor – can they be bound by a decision of a Court in circumstances where they are not a party to litigation?
Co-authored by Andrew Kirby and Kieran Hickie: Guarantors commonly have some association or relationship with a principal debtor. If proceedings are taken against a principal debtor, but not a guarantor, resulting in a binding judgment, the Victorian Supreme Court has recently held that in subsequent proceedings against a guarantor, the guarantor is not a ‘privy’ of the principal debtor and therefore is not bound by the determination of issues in the earlier proceeding.
A recent illustration of the stringency of the usual undertaking as to damages for a party who obtains an interlocutory injunction, where the injunction is later discharged and the proceeding lost.
In Australian Electoral Commission v Johnston  HCA 5, the High Court, sitting as the Court of Disputed Returns, answered questions of law in a way which led to the election of WA Senators to the Commonwealth Parliament being declared void.
The decision is significant because it confirms that a payment of a dividend to a creditor does not necessarily extinguish the company’s claim for the balance in fact owing to it.
Administrators establish power of sale over patent rights held in trust, but not without Court supervision
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Following on from Neobev Pty Ltd v Bacchus Distilleries Pty Ltd (Administrators Appointed)  FCA 4, where the assignee of certain rights to an invention used to manufacture clean skin spirits obtained a declaration in the Federal Court that the registered proprietor of the corresponding patent held that patent on trust for itself and the applicant as co-owners in equity.
Pre-action discovery application difficult to stomach for potential respondent to patent infringement action
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. AstraZeneca is the patentee of a proton pump inhibitor marketed in Australia as NEXIUM as a treatment for gastric reflux and other stomach acid problems. In late 2013, it sought and obtained pre-action discovery of certain documents submitted by Alphapharm to the Therapeutic Goods Administration in relation to a product, NOXICID, that treats similar conditions. By the present application, AstraZeneca sought pre-action discovery of other documents submitted to the TGA and supporting documentation, and delivery of samples of various NOXICID products.
Respondent’s prior product demonstrations of a competing article sufficient to destroy novelty of most of the claims in the patent in suit
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. The applicants (Damorgold) were the owner and exclusive licensee of a patent for a spring assisted blind mechanism, which had a priority date of 25 August 1999. The issue of the licensee’s right to relief was stayed. Damorgold claimed that JAI Products had infringed a suite of claims of the patent and JAI Products asserted the patent was invalid. In the end, Middleton J found two claims infringed and valid.
Swimwear manufacturer’s use of prior copyright works for “inspiration” steps over the line into infringement.
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. This was a claim of copyright infringement brought by Seafolly in respect of three artistic works printed on fabric used to manufacture various of Seafolly’s swimwear and beachwear. It alleged that certain artwork of a similar nature used by the respondent (trading as City Beach) on its products reproduced a substantial part of those works and that reproduction was not the result of independent creation.
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. These were two appeals from decisions by delegates of the Registrar to allow registration by Telstra of the mark YELLOW in respect of, among other things, online and print phone directories. Each of the applicants (respectively PDCA and Yellowbook) was unsuccessful in opposing Telstra’s application before the Registrar. Yellowbook also appealed the delegate’s decision to allow Telstra’s opposition to Yellowbook’s own application for YELLOWBOOK for the same goods and services. Murphy J dismissed all three appeals.
Co-authored by Peter Heerey AM QC, Tom Cordiner and Alan Nash. Mr Tyler is a Hawaii based photographer who sells and licenses his works as stock photographs. The respondent is a travel agent whose business is conducted over the Internet. She used one of Mr Tyler’s photographs without obtaining a licence from him, and rather than take down the image when confronted with her conduct sought to blame an unnamed web developer.