Late payment fees struck down as penalties
In a land mark judgment handed down on 5 February 2014 by the Federal Court, Gordon J held that late payment fees charged by the ANZ Bank infringed the doctrine of penalties.
Homepage Blog
International arbitration award for foreign company enforced by Federal Court
This case involved enforcement of a foreign award in Australia. Orders were made in aid of enforcement to prevent dissipation of shares in Australian companies owned by the award debtors. The award debtors were not permitted to re-agitate as a ground for resisting enforcement, a ground unsuccessfully agitated by them before the court at the seat of the arbitration to set aside the award.
Discovery and legal professional privilege – all is not lost when disclosure is accidental
In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management & Marketing Pty Ltd & Ors [2013] HCA 46 the High Court has confirmed that accidental disclosure of documents over which legal professional privilege is claimed will not amount to a waiver of such privilege. The appropriate course, in accordance with good practice management, will normally be for the recipient of the documents to return them to the solicitor of the party claiming privilege, and for that party to seek leave to amend its List of Documents. Failing to take such a pragmatic approach and raising technical legal points may in the circumstances be a breach of a party’s and its legal representatives’ obligations under the NSW Civil Procedure Act (and, it follows, the Victorian Civil Procedure Act).
Appointment of interstate receivers may raise the question of unnecessary fees
An application for an inquiry into the conduct of receivers and managers of the assets and undertaking of a corporation based in Western Australia pursuant to section 423 of the Corporations Act 2001 (Cth). The decision highlights the importance of exercising commercial judgment when considering appointments.
Violet Home Loans Pty Ltd v Schmidt [2013] VSCA 56
In this case Mr Schmidt obtained a line of credit facility from Perpetual Trustees Australia Limited (Perpetual) and gave a mortgage over his home as security for the facility. Violet Homes Pty Ltd (Violet) was the mortgage originator and manager and processed the loan application on behalf of Perpetual. Mr Schmidt borrowed the money to invest in what he thought were property developments. He was duped into doing so by Mr Maddock, who has since been convicted of fraud. Most of the money advanced by Perpetual to Mr Schmidt was paid directly or indirectly to Mr Maddocks and was lost.
UNCITRAL Model Law and the winding-up of a foreign insolvent company
The power of the Court to modify the operation of the UNCITRAL Model Law on Cross-Border Insolvency.
High Court unanimously rejects constitutional challenge to International Arbitration Act 1974 (Cth)
The High Court of Australia’s judgment in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 (13 March 2013) is the most important development in arbitration in Australia in the past 12 months, and has been keenly awaited by arbitration users and practitioners.
Google not responsible for misleading content from sponsored links
The High Court ruled that Google did not breach the Australian Consumer Law by acting as a ‘conduit’ to misleading content from sponsored links.
Mansfield v The Queen; Kirzon v The Queen (2012) 293 ALR 1
In this case, the High Court rejected an argument that to constitute ‘insider’ trading in contravention of the Corporations Act 2001, the information of which the accused person is in possession must be true and accurate. Justices Hayne, Crennan, Kiefel and Bell delivered a joint judgment and Justice Heydon delivered a separate judgment in which his Honour agreed with the plurality that the appeal ought to be dismissed.
Capitalisation of interest rate clause held to be penalty at trial
Sharpe & Ors v PSAL Ltd [2012] QCA 371 Facts The first appellant was an experienced investor and sole director of the second appellant. On 29 October 2009 the second appellant purchased a rural...
Access to company documents confirmed for committee members
The Queensland Court of Appeal unsurprisingly declares that members of the committee of an incorporated association are entitled to access and copy its business documents.
Defects visible to the ‘untrained eye’ can constitute constructive knowledge
This is the second case note of two cases in which subsequent owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. In determining whether the owners had suffered loss, the Tribunal considered whether the owners had constructive knowledge of ‘reasonably observable’ defects, also introducing the concept of the ‘untrained eye’.
Garcia and unconscionability principle applied to guarantor of company
Bank of Western Australia Ltd v Abdul [2012] VSC 222 – Justice Croft The Bank of Western Australia Ltd (Bankwest) sought to enforce a loan with the defendants Naseem Abdul (the first defendant) and...
Actual knowledge of building defects defeats statutory warranty claim
This is the first case note of two cases in which owners of a home have brought proceedings in respect of defects which are said to have arisen after purchase of the home. The Tribunal considered the issue of whether knowledge by the purchasers of the defects prior to purchase affected their claims.