Constructing a fair contract can save you millions
From 9 November 2023, major amendments apply to the unfair contract term (UCT) regime. The UCT regime applies to standard form contracts entered with consumers and small businesses, and attracts significant penalties.
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Set-Off Denied: Court Rules on Creditor's Claim in Metal Manufactures Pty Limited v Morton [2023] HCA 1
A creditor owed money in a liquidation is not entitled to set off that debt against any amount it is found to owe to the company under unfair preference provisions (and arguably other amounts payable to a company in liquidation which are recoverable pursuant to a liquidator’s statutory powers)
Licence lending – protecting your rights in domestic building contracts
Purchasing or building a new home is often said to be the largest financial commitment an individual or a couple will make in their lifetime. People will take on substantial mortgages in order to build their dream homes or investment properties. Therefore, it is extremely important that you ensure the legal goalposts are set from the beginning and understood by all parties, before signing on the dotted line.
Family Trust disputes – do not ignore The Black Sheep
A trust structure is often recommended to individuals and family business owners by their accounting and legal advisors to distribute income tax effectively and safeguard assets.
Residential tenancy disputes – protecting your rental property investment asset
In a competitive rental market, opportunity exists for residential landlords (‘rental providers’) to maximise their investment by way of rental return or by selling their rental property to realise its capital growth.
Recalcitrant tenants take advantage of jurisdictional blackhole – watch this space.
As confirmed by the High Court’s decision in Burns v Corbett [2018] HCA 15, state tribunals, such as VCAT, do not have the jurisdiction to hear disputes between interstate parties.
Insurance claims for COVID-19 business interruption: a win for businesses?
It is undeniable that the COVID-19 pandemic has presented unique and challenging issues for Australian businesses, causing long-term disruption to business. Adding further complexity is that, historically, the insurance industry would not provide relief to businesses affected by a pandemic.
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Owners Corporation 1 Plan No PS543073S and Ors v Eastrise Constructions Pty Ltd [2019] VCAT 1639
In Owners Corporation 1 Plan No PS543073S & ors v Eastrise Constructions Pty Ltd [2019] VCAT 1639 (Eastrise), the Victorian Civil and Administrative Tribunal (VCAT) has handed down an important decision in the context of expiring actions against builders pursuant to the Building Act 1995 (Vic) (Building Act).
Case update – Mann v Patterson Constructions
In October, the High Court handed down its judgment in the case of Peter Mann & Anor v Paterson Constructions Pty Ltd [2019] HCA 32 (Paterson), clarifying principles and providing constraints in respect of a claim on the basis of quantum meruit.
Review of Trustee's discretion: Marsella’s case gives some guidance
It is a longstanding general principle that where a trustee discloses reasons for the exercise of a discretion, the validity of the trustee’s reasons will be examined and reviewed.
Successful prosecution of 'the Ritz' owners
Harwood Andrews has acted for the City of Greater Geelong in a successful prosecution of the owners of ‘the Ritz’ - a prominent heritage listed building located on Bellerine Street, Geelong.
Oppression remedies for unit trusts
It is an unfortunate fact of life that running a business will not always go smoothly, and occasionally disputes will arise between business owners and business investors. A unit trust is a popular structure for conducting a business, but it has traditionally presented business owners and investors with some difficulty when seeking to resolve their disputes.
Plaintiff’s access to defendant insurance
A claimant liquidator was allowed to join the defendants’ insurer to the proceeding, in circumstances where the defendants were not going to pursue the insurance claim. This case may open up several new ways to utilise a defendant’s insurance, and Sladen Legal has some creative ways this decision can be used to plaintiffs’ benefit.
Non party’s liability for costs
The Court ordered costs against stakeholders in the plaintiff’s camp and stated that insolvency of a plaintiff insolvency weighs in favour of a cost order against a non-party supporting or directing it.
Federal Court gives green light for competition
The Federal Court has heralded a green light for competition in the discount pharmacy market in handing down its decision in a misleading and deceptive conduct case between the owners of Chemist Warehouse (Applicants) against Direct Chemist Outlet (Respondents). In this case, Harwood Andrews successfully defended the Respondents and also made out the Respondents counterclaim, invalidating the Applicants trademark “Who is? Australia’s Cheapest Chemist”.
High Court clarifies the circumstances in which the limitation period for bringing voidable transaction claims may be extended
Section 588FF(1) of the Corporations Act 2001 (Cth) (Act) allows liquidators to apply to a court for orders in relation to voidable transactions. Liquidators commonly seek to use this provision to “claw back” unfair preferences to particular creditors, but it also covers claims in respect of uncommercial transactions, unfair loans and unreasonable director-related transactions.
Green light for competition
On 17 March 2015, Justice Middleton of the Federal Court handed down his decision in Verrocchi and Gance –v- Direct Chemist Outlet Pty Ltd (ACN 123 831 210) and Ian Tauman.
$8.3 million penalty imposed on Sydney forklift gas cartel
A total of $8.3 million in penalties was imposed by the Federal Court upon two forklift gas supply companies, Renegade Gas Pty Ltd (Renegade), Speed-E-Gas (NSW) Pty Ltd (Speed-E-Gas) and three individuals of the two companies, for engaging in cartel conduct restricting competition.
Supreme Court considers trustee’s responsibility to disclose reasons
Discretionary trusts are widely used in modern-day business and are generally understood as efficient structures for asset protection and tax minimisation. The obligations of trustees in administering trusts, particularly with regard to providing reasons for their decisions to beneficiaries, are less well understood.
Shareholder disputes – Supreme Court takes alternate approach
Many small to medium sized businesses face disputes between shareholders. Often these shareholders are family members. Shareholder disputes are notoriously expensive to resolve and typically take the form of “oppression” claims commenced in the Supreme Court of Victoria under the provisions of s 233 of the Corporations Act 2001 (Cth). Although individual disputes will differ, all these disputes have in common allegations that the affairs of a company have been conducted in an oppressive manner.