Benchmark
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Banking

Wednesday, 8 October 2014
Executive Summary (One Minute Read)
Sims v Chong (FCA) - summary judgment - abuse of process - advocates' immunity - claim against legal practitioner struck out
BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd (NSWSC) - contract - entitlement to preference shares on conversion of convertible notes
Summaries With Link (Five Minute Read)
Sims v Chong [2014] FCA 1069
Federal Court of Australia
Barker J
Summary judgment - abuse of process - advocates' immunity - applicant sought relief against legal practitioner who acted for him in a contract claim against a company - applicant alleged legal practitioner engaged in misleading, deceptive, and unconscionable conduct, breached contractual and fiduciary obligations, and was negligent - legal practitioner sought summary judgment pursuant to r26.01(1)(a), (c) or (d) Federal Court Rules 2011 (Cth) on basis proceedings were abuse of process - held: applicant's claims against legal practitioner depended on claim there was an enforceable promise made by company and if lawyers had done better he would still be able to pursue action in Supreme Court - in light of Supreme Court's decision to strike out fifth statement of claim, it was not now open to applicant to relitigate the contract argument in present proceedings - proceedings were abuse of process - legal practitioner also protected by doctrine of advocates' immunity - proceedings struck out.
Sims
BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2014] NSWSC 1363
Supreme Court of New South Wales
Stevenson J
Contract - plaintiff ("BBRC"), first defendant ("ALF") and second defendant entered deed by which BBRC became holder of $30 million of convertible notes issued by ALF - notes matured and converted into preference shares in ALF - BBRC claimed it was entitled to be issued with number of preference shares dictated by conversion formula in clause of Terms of Issue of convertible notes - defendants accepted that $10 million of BBRC's convertible notes were converted into preference shares at that rate but that remaining $20 million of BBRC's notes converted on a "$1.00 for 1 share" basis - determination of amount of "Organic Debt" in ALF group on conversion date - Blatch v Archer principle - held: BBRC's $20 million convertible notes converted into preference shares at the rate specified in clause of Terms of Issue and not on a "$1.00 for 1 share" basis - ALF had issued insufficient shares to BBRC and too many shares to second defendant - as to remaining disputes about "Organic Debt", Court concluded one of the amounts said by BBRC to comprise "Organic Debt" did so, and that the others did not - notes converted at the rate in Terms of Issue - level of "organic debt" determined.
BB Retail Capital Pty Ltd