| Wellington Capital Ltd v ASIC (HCA) - corporations - responsible entity of managed investment scheme not authorised by scheme constitution to distribute scheme property in specie to unit holders (I B G) |
| ACCC v DuluxGroup (Australia) Pty Ltd (FCA) - consumer law - preliminary issue - some representations conveyed by impugned advertising and marketing materials (I G) |
| Shah v Sanjiv (NSWSC) - real property - appointment of trustees for sale of property refused (B) |
| TPI Enterprises Ltd v Poppy Growers Tasmania Inc (VSC) - defamation - misleading and deceptive conduct - summary judgment refused - strike-out of pleading refused (I B) |
| Poniatowska v Channel Seven Sydney Pty Ltd (No 3) (SASC) - pleadings - defamation - leave refused to amend reply following close of evidence (I) |
| Sino Iron Pty Ltd v Mineralogy Ptd Ltd (WASC) - pleadings - leave to make uncontroversial amendments to defence nine days before hearing (I C) |
| Bulk Frozen Foods Pty Ltd v Excell (TASSC) - employment contract - clause restraining employee in relation to taking up other employment not wholly void (I B) |
| Summaries With Link (Five Minute Read) |
Wellington Capital Ltd v Australian Securities and Investments Commission [2014] HCA 43
High Court of Australia
French CJ; Crennan, Kiefel, Bell & Gageler JJ
Corporations - Perpetual was custodian of managed investment scheme - Perpetual appointed by Wellington Capital as its agent to hold scheme property on its behalf - Wellington sold assets of scheme to Asset Resolution (ARL) in consideration of issue of shares in ARL to Perpetual - assets disposed of had publicly stated value of $90.75 million and represented about 41% of value of assets comprising scheme property - Wellington instructed Perpetual to transfer the ARL shares held by Perpetual to unit holders in the scheme in proportion to number of units held by each unit - transfer effected - ASIC challenged validity of transfer - application was dismissed by primary judge - Full Court of Federal Court allowed appeal - ss9, 124, 231, 601FB(1), 601FC, Ch 5C Corporations Act 2001 (Cth) - s33(1)(l) Trusts Act 1973 (Qld) - held: scheme constitution, properly construed, confined return of capital to specified circumstances and did not authorise Wellington to make an in specie distribution of scheme property to unit holders - appeal dismissed.
Wellington Capital Ltd (I B G) |
ACCC v DuluxGroup (Australia) Pty Ltd [2014] FCA 1158
Federal Court of Australia
Siopis J
Consumer law - preliminary question - ACCC contended Dulux made statements and published materials which misrepresented qualities of paint and effect of applying it to roof and walls of a house in contravention of ss52 & 53(c) Trade Practices Act 1974 (Cth) or ss18 & 29(1)(g) Australian Consumer Law (Cth) - Court ordered question whether language and/or get-up of advertising and marketing materials gave rise to representations relied upon by ACCC be tried as a preliminary issue - held: certain representations conveyed, and certain representations not conveyed, by the impugned advertisements and marketing materials
ACCC (I G) |
Shah v Sanjiv [2014] NSWSC 1535
Supreme Court of New South Wales
White J
Real property - parties' marriage had broken down - plaintiff applied pursuant to s66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale of property registered in sole name of defendant - held: there was only jurisdiction to appoint trustees for sale pursuant to s66G in the circumstances of the case if the plaintiff was a co-owner in equity of the land - plaintiff sought leave to amend summons to seek declaration that plaintiff had a beneficial interest in the property - held: leave to amend refused - claim could not be made on run and evidence insufficient to establish beneficial interest - even if it were open to proceed under s66G it would not be appropriate in the circumstances of the case to do so - summons dismissed.
Shah (B) |
TPI Enterprises Ltd v Poppy Growers Tasmania Inc [2014] VSC 518
Supreme Court of Victoria
Dixon J
Summary judgment - defamation - pleadings - plaintiffs alleged defendant made defamatory imputations contained in statements in two publications - plaintiffs contended statements were in breach of s18 Australian Consumer Law - defendants denied defamatory nature of statements and any misleading or deceptive conduct - defendants sought summary judgment or strike out of a number of paragraphs of plaintiffs' further amended statement of claim - s63 Civil Procedure Act 2010 (Vic) - rr23.01 & 23.02 Supreme Court (General Civil Procedure) Rules 2005 (Vic) - held: summary judgment not warranted - plaintiffs' chance of success in could not be characterised as fanciful - strike-out of paragraphs not warranted - paragraphs were not scandalous, frivolous, or vexatious - paragraphs were not likely to prejudice, embarrass, or delay the fair trial of the proceeding, and were not otherwise an abuse of process.
TPI Enterprises Ltd (I B) |
Poniatowska v Channel Seven Sydney Pty Ltd (No 3) [2014] SASC 159
Supreme Court of South Australia
Parker J
Pleadings - defamation - plaintiff sought leave to amend reply pursuant to r54 Supreme Court Civil Rules 2006 (SA) following close of both parties' evidence at trial - Channel 7 contended that the content of a broadcast referring to the plaintiff was justified by guilty plea even though the charges were later found to be legally defective - plaintiff replied by asserting that guilty plea was attributable to poor legal advice - plaintiff sought to add that she was mentally unfit to enter her plea - held: evidence did not support the amendment - application to amend reply refused.
Poniatowska (I) |
Sino Iron Pty Ltd v Mineralogy Ptd Ltd [2014] WASC 406
Supreme Court of Western Australia
Edelman J
Pleadings - trial of action listed to be heard in nine working days' time - Mineralogy sought leave to make radical amendments to its defence and to file a counterclaim -
Mineralogy's eighth pleading in just over a year - minor amendments - other categories of amendments involving serious threat to trial dates or certain vacation of trial dates - held: some of Mineralogy's proposed amendments not controversial and involved matters of law which would not have any substantial effect on trial - Mineralogy granted leave to make those amendments - however in all the circumstances of this case, leave refused in relation to all remaining proposed amendments.
Sino Iron Pty Ltd (I C) |
Bulk Frozen Foods Pty Ltd v Excell [2014] TASSC 58
Supreme Court of Tasmania
Blow CJ
Contract - employment contract - confidential information - preliminary question - defendant was employed as general manager at plaintiff's company - plaintiff resigned to take up employment with a competitor of plaintiff - employment contract contained clauses restricting defendant in relation to taking up other employment and requiring him not to use or disclose any of the plaintiff's confidential information - plaintiff sought declaration relevant provisions of contract were valid and enforceable, injunction restraining defendant from contravening certain provisions, and order for delivery up of all property belonging to plaintiff that was in defendant's possession or control - preliminary issue whether clause of employment agreement restricting defendant in relation to taking up of other employment was void - defendant contended clause was void at common law for both uncertainty and unreasonableness - held: clause was not void for uncertainty - clause not wholly void for unreasonableness - question left open whether some of the covenants embodied in clause were void for unreasonableness.
Bulk Frozen Foods Pty Ltd (I B) |
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