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Benchmark
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia. |
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Banking
Wednesday, 29 October 2014 |
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| Executive Summary (One Minute Read) |
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Austructures Pty Ltd
v Makin (VSC) - corporations - pleadings - leave to
amend certain paragraphs of statement of claim
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Ristic v Maroti (No
2) (VSC) - funds in court - proceeds of sale of
property - failure to prove contribution to relationship - payment out less admitted
sum owing
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| Summaries With Link (Five Minute Read) |
Austructures Pty Ltd
v Makin
[2014] VSC 544
Supreme Court of Victoria
Almond J
Corporations - pleadings - limitations - plaintiffs
alleged contraventions by first defendant of duties under ss180(1), 181(1),
182(1) & 183(1) Corporations Act 2001
(Cth) - statement of claim also set out limited claims against second defendant
- plaintiffs sought to amend statement of claim - plaintiffs submitted proposed
amendments expanded existing claims based on breaches of the Act to include
claims against second defendant - plaintiff also submitted amendments would
allow plaintiffs to seek extension of time, if necessary, for commencing
proceeding for breach of statutory obligations, and that they claimed from
second defendant any benefit it received from first defendant's breaches of
fiduciary obligations - addition of statute-barred causes of action -
discretion to extend time - ss1317K & 1322(4) - no later than - held: Court did not have discretion to extend time
for commencing claim for compensation order under s1317H - leave to amend
pleadings in respect of new claims of knowledge of contravening conduct refused
- leave to amend concerning claims of advantage obtained by second defendant
allowed so that question of first defendant's legal capacity between himself
and second defendant at relevant times could be determined at trial.
Austructures Pty Ltd
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Ristic v Maroti (No
2) [2014] VSC 540
Supreme Court of Victoria
Lansdowne AsJ
Funds in court - trusts - entitlement to sum of money
deposited into the Court - sum was balance proceeds of sale of property
registered in plaintiff's name - plaintiff claimed whole of funds that remained
- defendant sought payment out to her of half of sum paid in on basis she and
plaintiff were in de facto relationship - financial and non-financial
contributions she had made to relationship - defendant claimed plaintiff should
be found to hold one half of balance of proceeds of sale on constructive trust
for her - held: defendant bore onus of proof on issue of contribution and
failed to discharge it - Court not satisfied defendant made financial or
non-financial contributions such that the plaintiff should be held to hold
balance of the funds after sale of his home on constructive trust for her, with
exception of sum of $3000 he admitted that he owed her early in dispute -
defendant's claim for alteration of property interests remained - first issue
to be determined in respect of that claim, if it were pursued, was whether
leave should be granted to allow it to be brought out of time - payment out to
plaintiff of the remaining funds in Court, less $3000.
Ristic
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