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Ben Broadhead

Supreme Court hand down game-changing decision regarding application of Domestic Building Contracts Act to residential developers

Supreme Court hand down game-changing decision regarding application of Domestic Building Contracts Act to residential developers

On 29 April 2015, the Victorian Supreme Court handed down its judgment in Burbank Australia Pty Ltd v Owners Corporation PS 447493 [2015] VSC 160, which concerned an appeal from a decision of the Victorian Civil and Administrative Tribunal, in relation to allegations of defective building works in the common property of the ‘Waterford Towers’ apartment building built by Burbank in the Melbourne suburb of Maribyrnong.

Federal Court gives green light for competition

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

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

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.

Rectification orders

Rectification orders

A new section 45 under the Domestic Building Contracts Act 1995 enables a party to a domestic building contract to refer a dispute to the Victorian Building Authority.

How long are builders liable for their work?

How long are builders liable for their work?

The previous uncertainty surrounding the length of time in which home owners could bring a claim against builders has now been clarified by the Supreme Court of Victoria.

Execution of Guarantees - Think twice before seeking to avoid liability for a guarantee

Execution of Guarantees - Think twice before seeking to avoid liability for a guarantee

When obtaining finance, directors of family businesses will often be required to provide guarantees.  

Importantly, and as the discussion below indicates, directors may become unwittingly bound by guarantees they did not know they had provided.

T
herefore it is important that prospective guarantors fully understand when a guarantee will be taken to have been provided, as well as understanding that executing a contract in their directorial capacity may, if the agreement so provides, expose them to personal liability under a guarantee.    

The Effect of Brirek Industries Appeal on Section 134 of the Building Act 1993 (Vic)

The Effect of Brirek Industries Appeal on Section 134 of the Building Act 1993 (Vic)

The Victorian Civil and Administrative Tribunal (VCAT) has long adopted the position that the ten year period for which an action can brought against a builder as stated in Section 134 (S134) of the Building Act 1993 (the Act), is intended to replace the period of six years provided by the Limitations of Actions Act 1958. This position has not been without its critics.

The recent County Court decision of Brirek Industries –v- McKenzie Group Consulting, adopts the alternative position. That is, any cause of action will be statute barred upon the expiration of the six year period under the Limitations of Actions Act 1958.