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SUPREME COURT OF VICTORIA COMMERCIAL COURT BULLETIN No. 42009

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Title: SUPREME COURT OF VICTORIA COMMERCIAL COURT BULLETIN No. 42009


1
SUPREME COURT OF VICTORIACOMMERCIAL COURT
BULLETIN No. 4/2009
2
Recent Judgments
  • Matter Re AWB Limited (No 4)
  • Judge Robson J
  • Date 4/06/2009
  • Citation 2009 VSC 315
  • Subject CORPORATIONS - Civil penalty proceedings
    by ASIC Non-party discovery sought by ASIC
    Application to further amend the amended
    statement of claim Application to vacate trial
    date Relevance of prejudice to defendant in
    delay r 32.07 of Supreme Court (General Civil
    Procedure) Rules 2005.
  • Click here for full text of judgment

3
  • Matter Redepay Pty Ltd v Net4U.com.au Pty Ltd
  • Judge Pagone J
  • Date 28/07/2009
  • Citation 2009 VSC 316
  • Subject CORPORATIONS LAW Application to set
    aside statutory demand Whether there is a
    genuine dispute or an offsetting claim Mere
    assertions insufficient to establish genuine
    dispute.
  • Click here for full text of judgment

4
  • Matter 1144 Nepean Highway Pty Ltd v Leigh
    Mardon Australasia Pty Ltd
  • Judge Pagone J
  • Date 30/07/2009
  • Citation 2009 VSC 317
  • Subject CONTRACTS Construction of clause
    providing for appointment of expert Whether
    the parties must also agree to experts terms of
    appointment Whether parties must do all that
    is necessary to give full effect to the
    agreement.
  • Click here for full text of judgment

5
  • Matter Epworth Foundation v Healthcare Imaging
    Services (Victoria) Pty Ltd
  • Judge Judd J
  • Date 31/07/2009
  • Citation 2009 VSC 293
  • Subject CONTRACT Services Agreement
    construction change in control of a party
    termination for change in control - election to
    affirm unequivocal conduct delay - prejudice
  • CONTRACT Estoppel by conduct assumption
    concerning legal position silence - duty to
    warn unconscionable conduct
  • TRADE PRACTICES conduct by silence duty to
    warn s 52 Trade practices Act 1974 (Cth) and s
    9 Fair Trading Act 1999 (Vic)
  • Click here for full text of judgment

6
  • Matter Re S D International Pty Ltd (No 2)
  • Judge Robson J
  • Date 4/08/2009
  • Citation 2009 VSC 341
  • Subject CORPORATIONS inquiry ordered into
    conduct of second defendant as receiver and
    manager of SD International Pty Ltd and as agent
    in possession of land of the company
    application of second defendant to adjourn
    inquiry and to defer date by which he is to file
    affidavits for the inquiry until Court of Appeal
    has heard and determined application for a stay
    of order for inquiry application refused
  • CORPORATIONS practice and procedure
    application to file and serve a third party
    notice application withdrawn as the proceedings
    not commenced by writ or otherwise as referred
    to in r 11.05(1) of the Supreme Court (General
    Civil Procedure) Rules 2005 application for
    directions in Corporations List for the filing
    and serving of the third party notice
    directions given r 11.05 of the Supreme Court
    (General Civil Procedure) Rules 2005
  • Click here for full text of judgment

7
  • Matter Re AWB Limited (No 6)
  • Judge Robson J
  • Date 6/08/2009
  • Citation 2009 VSC 330
  • Subject CORPORATIONS legal professional
    privilege application by AWB Limited for
    access to documents - proceedings by ASIC
    against former managing director of AWB Limited
    seeking civil penalties examinations conducted
    under s 19 of the ASIC Act 2001 and statements
    given to ASIC in relation to the affairs of AWB
    Limited AWB Limited has reasonable grounds to
    believe that privileged and confidential
    information may be in the transcript of the
    examinations and the statements transcripts
    and statements ordered to be discovered by ASIC
    to the defendant application by AWB Limited to
    examine the transcripts and statements to assert
    claims of privilege whether AWB Limited should
    be given a realistic and practical opportunity
    to assert and test is claims to privilege and
    confidentiality - application granted on terms
  • Click here for full text of judgment

8
  • Matter BHP Billiton (Olympic Dam) Corporation
    Pty Ltd v Steuler Industriewerke GmbH Protec
    Pacific Pty Ltd v Steuler Industriewerke GmbH
  • Judge Habersberger J
  • Date 7/08/2009
  • Citation 2009 VSC 322
  • Subject TRADE PRACTICES Misleading or
    deceptive conduct Representation by supplier
    that a particular liner was suitable for use as a
    long term containment membrane for the concrete
    solvent extraction tanks at the Olympic Dam mine
    Other representations about the liner
    Whether made to installer of liner or to owner
    of mine Reliance Whether representations were
    misleading or deceptive Causation Loss and
    damage Trade Practices Act 1974 (Cth) ss.52,
    82.
  • CONTRACT Which company entered into contract
    bearing name of one entity and ACN of another.
  • Click here for full text of judgment

9
  • Matter Elhan Anor v Saykan Ors (No 3)
  • Judge Hansen J
  • Date 10/08/2009
  • Citation 2009 VSC 324
  • Subject COSTS Oppression case - Defendants
    offered 220,000 before trial to purchase second
    plaintiffs shares and settle (different)
    proceeding with no order for costs - Plaintiffs
    rejected offer - Interlocutory order pre-trial
    that second plaintiff sell shares to defendants
    for 220,000 but reserving question of fair value
    of shares Plaintiffs contended shares worth
    significantly more - Plaintiffs successful in
    establishing oppression Fair value of shares
    ultimately held to be 224,826 Whether
    plaintiffs acted unreasonably in rejecting offer
    and pursuing litigation Plaintiffs did not act
    unreasonably in the circumstances Discretionary
    factors Plaintiffs entitled to costs.
  • Click here for full text of judgment

10
  • Matter von Risefer v Mainfreight International
    Pty Ltd
  • Judge Ashley JA and Beach AJA
  • Date 13/08/2009
  • Citation 2009 VSCA 179
  • Subject APPLICATION Leave to appeal
    Winding-up order Application to terminate or
    permanently stay winding-up order Defective
    service of statutory demand Winding-up order
    made on notice but in absence of defendant
    company Relevance of insolvency and issues of
    commercial morality and public interest to
    application to terminate or permanently stay
    winding-up order Corporations Act 2001 s 482
    (Cth).
  • Click here for full text of judgment

11
  • Matter TAB Limited v Racing Victoria Limited
    TAB Limited v Greyhound Racing Victoria
  • Judge Davies J
  • Date 13/08/2009
  • Citation 2009 VSC 338
  • Subject STATUTE Construction of transitional
    provision between repealed and current
    legislation Whether transitional provision
    created a statutory fiction that approval
    under earlier section amounts to a grant of
    approval under later section Cl 18.2 in Part
    18 of Schedule 7 Gambling Regulation Act 2003
    Division 5A Gambling Regulation Act 2003.
  • STATUTE Construction Power to vary approval
    Imposition of a fee as a condition of approval
    Validity Whether specification of an actual
    amount was required by statute Whether the fee
    imposed was sufficiently certain Whether a
    requirement that the fee be a fair and
    reasonable economic contribution Division 5A
    Gambling Regulation Act 2003.

12
  • TAB Limited v Racing Victoria Limited TAB
    Limited v Greyhound Racing Victoria
  • (continued)
  • Subject ADMINISTRATIVE LAW Retrospective
    operation of decision Whether retrospective
    component severable.
  • ADMINISTRATIVE LAW Procedural fairness
    Whether duty to afford the opportunity to be
    heard owed Whether imposition of a fee
    condition a policy decision not attracting the
    requirement of procedural fairness.
  • CONTRACT Variation of terms Whether
    unilateral variation of the fee condition
    permissible.
  • WORDS AND PHRASES Under.
  • Click here for full text of judgment

13
  • Matter Sampford IXL Pty Ltd Anor v Whirlpool
    (Australia) Pty Ltd
  • Judge Byrne J
  • Date 14/08/2009
  • Citation 2009 VSC 335
  • Subject CONTRACT interpretation of contract
    distributorship agreement provision that upon
    termination supplier will take on any unexpired
    warranty liabilities of distributor what
    warranty liabilities? matrix evidence
    evidence of facts known to predecessors of
    negotiating parties whether available as an aid
    to construction.
  • Click here for full text of judgment

14
  • Matter Re Mento Developments (Aust) Pty Ltd (in
    liq)
  • Judge Robson J
  • Date 17/08/2009
  • Citation 2009 VSC 343
  • Subject CORPORATIONS directions - court
    appointed liquidators application for
    directions under s 479(3) of the Corporations
    Act 2001 jurisdiction of the court whether
    the court is entitled to give directions where
    the questions relate to disputed claims against
    a third party whether the court in its
    discretion should give directions where the
    questions relate to disputed claims against a
    third party questions going to issue whether
    company in liquidation entitled to indemnify
    itself out of trust assets that it holds on
    trust for unit trusts relevance of adversarial
    nature of proceedings finding that court has
    jurisdiction and should give directions sought
    limitation on findings to those necessary to give
    a direction on whether liquidator justified in
    administering the winding up on basis that
    company executed guarantee at trustee
    application granted and directions given s
    479(3) of the Corporations Act 2001

15
  • Re Mento Developments (Aust) Pty Ltd (in liq)
  • (continued)
  • Subject CONTRACT guarantee construction -
    whether executed personally or in capacity as
    trustee evidence admissibility of extrinsic
    evidence to establish capacity
  • Click here for full text of judgment

16
  • Matter Amanatidis v Syed Anor
  • Judge Hansen J
  • Date 20/08/2009
  • Citation 2009 VSC 350
  • Subject PROPERTY LAW - Sale of land
    Residential units and car spaces on strata titles
    Units owned by one or other vendor solely
    Contract of sale in form of joint sale by
    vendors Whether contract effective
    Non-payment of residue Rescission by vendors
    Whether effective Purchaser seeks specific
    performance.
  • Click here for full text of judgment

17
Current Cases
  • To access the list of current cases in the
    Commercial Court
  • please click on the link below
  • Supreme Court of Victoria - Commercial Court
    Current Cases
  • Information about the Commercial Court is
    available on the
  • Supreme Court website at http//www.supremecourt.
    vic.gov.au

18
Further Information
  • For further information about this publication
    including ordering
  • additional copies or to make changes to your
    mailing address
  • (including removal from the mailing list)
    please contact the
  • Supreme Court Library.
  • Telephone (03) 9603 6282
  • Facsimile (03) 9642 0159
  • Email sclib_at_supremecourt.vic.gov.au
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