| Fortress
Credit Corporation (Australia) II Pty Ltd v Fletcher (HCA)
- corporations - insolvency - voidable transactions - s588FF(3) Corporations Act 2001 (Cth) allowed
making of shelf orders - appeal dismissed (B) |
| Grant
Samuel Corporate Finance Pty Ltd v Fletcher: JPMorgan Chase Bank, National
Association v Fletcher (HCA) - corporations - voidable
transactions - order varying extension of time for liquidators to bring
proceedings under s588FF(1) Corporations Act 2001 (Cth) set aside - appeal
allowed (B) |
| Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd
(in Liq) (No 2) (FCA) - insurance - financial services errors
and omissions policy - financial adviser’s cross-claim against insurers
dismissed (I B) |
| Chel
v Fairfax Media Publications Pty Ltd (NSWSC) - pleadings -
defamation - permission to amend statement of claim refused - statement of
claim not struck out (I) |
| Ioppolo
v Conti (WASCA) - superannuation - trustee’s discretion - Superannuation Industry
(Supervision) Act 1993 (Cth) did not require appointment of
executor of deceased member’s estate - appeal dismissed (I B) |
| The
Hancock Family Memorial Foundation Ltd v Lowe (WASCA)
- professional indemnity insurance - construction and validity of condition -
appeal dismissed (I B C) |
| Summaries With Link (Five Minute Read) |
Fortress
Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10
High Court of Australia
French CJ; Hayne, Kiefel, Gageler &
Keane JJ
Corporations - insolvency - voidable
transactions - liquidators obtained order under s588FF(3)(b) Corporations Act 2001 (Cth) extending
time to make applications under s588FF(1) (shelf order) - liquidators sought
order under s588FF(1) against applicants with respect to certain transactions -
applicants sought to have shelf order set aside on basis that it was invalid -
Court of Appeal of New South Wales found s588FF(3)(b) allowed making of shelf
orders, that applications under ss588FF(1) and (3) were distinct applications,
and that Court did not err in exercising discretion not to set aside shelf
order - held: Court could make order extending time under s588F(3)(b) without
identifying particular transaction or transactions to which it would apply - availability
of shelf orders was a construction open on text of s588FF(3)(b) - construction consistent
with purpose of provision to allow Court to mitigate strictness of time limits in
an appropriate case - effect of re-enactment of s588FF(3), in light of construction
adopted by Court of Appeal, is no barrier to construction and may be taken to
support it - appeal dismissed.
Fortress
Credit Corporation (Australia) (B)
|
Grant
Samuel Corporate Finance Pty Ltd v Fletcher: JPMorgan Chase Bank, National
Association v Fletcher
[2015] HCA 8
High Court of Australia
French CJ; Hayne, Kiefel, Bell, Gageler &
Keane JJ
Corporations - winding up - voidable
transactions - liquidators sought order extending period to bring proceedings
under s588FF(1) Corporations Act 2001 (Cth)
- Supreme Court of New South Wales granted extension (extension order) - further
application made within period of extension but after par (a) period had expired
- Supreme Court varied extension order under r36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) by changing date set in
extension order from 3 October 2011 to 3 April 2012 (variation order) -
appellants sought to set aside variation order - held: bringing of application
within time required by s588FF(3) was precondition to jurisdiction under s588FF(1)
- only power to vary par (a) period was given by s588FF(3)(b) - once par (a)
period had elapsed, UCPR could not be utilised to further extend time to bring
proceedings, because s588FF(3) otherwise
provided - extension order within power - as a result of extension order,
proceedings could be brought by 3 October 2011, but no further extension could
be granted - appeal allowed.
Grant
Samuel Corporate Finance Pty Ltd (B)
|
Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) v Salisbury Group Pty Ltd
(in Liq) (No 2)
[2015] FCA 147
Federal Court of Australia
Robertson J
Insurance - financial services errors
and omissions insurance policy - proceedings originally comprised two claims -
claim by trustee of Sienkiewicz retirement fund - claim by trustee for AT
Melville retirement fund - both claims for damages against former financial
advisers, namely company and its representatives - company in liquidation -
there was also claim against financial advisers’ professional indemnity
insurers - applicants settled case against representatives and discontinued
against company - one representative continued claim against insurers for
indemnity - meaning and application of insuring clause of policy - whether
representative an insured - any Authorised representative - meaning
and application of endorsements and exclusions - approved investment products - whether s54 Insurance Contracts Act 1984 (Cth) prevented insurer from refusing
to pay claim - held: representative’s cross-claim against insurers dismissed.
Sienkiewicz
(As Trustee for the Sienkiewicz Superannuation Fund) (I B)
|
Chel
v Fairfax Media Publications Pty Ltd
[2015] NSWSC 171
Supreme Court of New South Wales
McCallum J
Pleadings - defamation - actions arising
out of publication in newspaper - plaintiff sought to amend pleading to include,
as imputations complained of by her, two contextual imputations pleaded by
defendants in support of defence of contextual truth - defendants sought to
have reply struck out pursuant to r14.28 Uniform
Civil Procedure Rules 2005 (NSW) - held: Court not persuaded plaintiff sought
to vindicate reputation against defamatory meanings captured in defendants’
contextual imputations - plaintiff sought leave to amend to plead imputations
she eschewed - dictates of justice did not require Court to allow amendment -
in circumstances where further particulars to be provided, inappropriate to
strike out pleading.
Chel (I)
|
Ioppolo
v Conti
[2015] WASCA 45
Court of Appeal of Western Australia
Martin CJ, Buss JA & Beech J
Superannuation - first respondent (Mr
Conti) and late wife (Mrs Conti) became trustees and beneficiaries of trust
fund established by deed which required compliance with Superannuation Industry (Supervision) Act 1993 (Cth) - after Mrs
Conti died, probate of Will granted to appellants, who were son and daughter -
Mr Conti as trustee of fund determined benefits standing to account of late Mrs
Conti would be paid to him rather than children - executors claimed that Mr
Conti required by s17A to appoint one of them to act as trustee of fund in
place of late Mrs Conti and that until such appointment Mr Conti had no power
to deal with Mrs Conti’s interest in fund - executors asserted determination to confer interest void
- held: Master correct to hold s17A did
not require Mr Conti to appoint one or other of executors trustee of the Fund,
and that there was no evidence of bad faith in making determination - appeal
dismissed.
Ioppolo (I B)
|
The
Hancock Family Memorial Foundation Ltd v Lowe [2015] WASCA 38
Court of Appeal of Western Australia
McLure P, Newnes JA & Beech J
Professional indemnity insurance - primary
judge dismissed appellant’s action against respondents under s51 Insurance Contracts Act 1984 (Cth) -
primary issue at trial was proper construction of condition in two excess
professional indemnity insurance contracts between late solicitor and respondents
- appeal also included challenge to the validity of the condition as construed
by the trial judge - test of implied retainer - estoppel by convention -
classification of policies as true excess insurance - held: purpose of
condition was to make obligation to indemnify conditional on solicitor establishing both the
fact and amount of fund’s liability to indemnify solicitor - trial judge’s
construction of condition correct - condition not void under s52 - appeal
dismissed.
The
Hancock Family Memorial Foundation Ltd (I B C)
|
