Misleading and deceptive conduct in the sale of a business

September 08, 2023 by JW in Civil Procedure, Commercial Court, Contracts, Misleading and deceptive, Court of Appeal, Section 236 ACL damages, Sale of business

Disputes regarding falsified figures from the sale of a business are commonplace in commercial litigation. The allegation is frequently heard that a vendor has misrepresented the amount of sales and profits from their business in order to “fatten the pig for market”. The Victorian Court of Appeal recently delivered a decision in H & Q Cafe Pty Ltd v Melbourne Cafe Pty Ltd & Anor [2023] VSCA 200 which contains important learnings for those involved in sale of business disputes.

Finally, the Supreme Court rules allow single exhibit certificates

October 04, 2021 by JW in Civil Procedure, Procedure

Rule 43 and Form 43A (effective from 1 October 2021) allow a paginated bundle of documents to be filed behind a single exhibit certificate. Halleloo! It was such a waste of time preparing exhibit certificates.

Third party proceedings

January 15, 2019 by JW in Indemnity, Contribution, Commercial Court, Third party procedure, Order 11, Delay

The third-party procedure enables liability between plaintiff and defendant, and defendant and third party to be determined concurrently, in the same proceeding. There can be no judgment against the third party until the court gives judgment against the defendant. There must be a nexus between all claims.

The loan, guarantee and wife. What is the law?

October 30, 2018 by JW in Commercial Court, Civil litigation, Garcia v NAB, Yerkey v Jones

Women are better educated, participate in the workforce, and have greater financial independence than ever before. Despite that, cases of the “ill-informed wife” or the “unduly influenced wife” signing a guarantee are the subject of regular legal disputes. What is the relevant law?

What constitutes a ‘memorandum or note’ pursuant to section 126 of the Instruments Act?

October 16, 2018 by JW in Civil litigation, Civil Procedure, Commercial Court, County Court of Victoria, Instruments Act, Fraud, Memorandum or note

If a key instrument requiring a signature (ie a loan, mortgage) has not been signed but surrounding documents which refer to the instrument have been signed, what should lawyers do? One of the most helpful provisions available in such circumstances is section 126 of the Instruments Act 1958 (Vic)

Restraining the registrar of titles pursuant to Section 90(2) of the Transfer of Land Act 1958 (Vic)

October 03, 2018 by JW in Civil litigation, Commercial Court, County Court of Victoria, Interlocutory Injunction

Various circumstances may require the registrar of titles to be restrained from taking action regarding a dealing in land. Section 90(2) of the Transfer of Land Act permits the court to restrain the registrar from dealing with land pending the determination of a dispute at a hearing or pending a further order.

New Supreme Court filing fees from 1 October 2018

September 30, 2018 by JW in Procedure, Supreme Court of Victoria, Filing Fees, Supreme Court (Fees) Regs

Effective today, the Supreme Court implements new fees payable under new regulations.

Oppression proceedings: key principles and procedures

June 19, 2018 by JW in Civil litigation, Corporations Act, Oppression proceedings, Section 232 Corps Act, Section 233 Corps Act, Section 461 Corps Act, Section 467 Corps Act, Oppression

The statutory remedy most often used by shareholders who feel they have been unfairly treated, prejudiced, discriminated against or oppressed, is the oppression remedy in Part 2F of the Corporations Act (“Act”). Any individual member (or members) can commence a proceeding against the directors of the company or the company itself.

Oppression proceedings: when will the court decline to wind-up a company?

June 17, 2018 by JW in Oppression proceedings, Section 461 Corps Act, Section 467 Corps Act, Section 232 Corps Act, Section 233 Corps Act, Corporations Act

In oppression proceedings, the Court is extremely reluctant to wind up an otherwise flourishing, solvent company on the ‘just and equitable’ basis pursuant to section 467(4) of the Corporations Act ("Act").

How to get a freezing order

June 06, 2018 by JW in Civil litigation, Civil Procedure, Procedure, Freezing Order, Asset Preservation Order, Rule 37A Supreme Court, Practice Note SC Gen 17, Mareva Order

A freezing order is to prevent execution of a judgment or other court process from being rendered ineffective. This article considers the tests for obtaining a freezing order, the relevant rules, and some of the difficulties and subtleties.

Strike out applications

May 14, 2018 by JW in Commercial Court, Procedure, Strike out application, Order 23

If you can understand the other side's case, don't bother with a strike out application.

Strike out applications pursuant to Order 23 have historically be made for strategic reasons, but that is changing. They should now only be made if a pleading or case cannot be understood.

Claims can be made against single project developers under the Security of Payments Act

March 23, 2018 by JW in Contracts, Debt recovery, Payment Claims

In the recent Supreme Court case of Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14, the Court has paved the way for builders and contractors to recover payments from developers who may only have one development in progress.

Do companies require legal representation?

March 22, 2018 by JW in Supreme Court of Victoria, Rule 1.17(1), Legal representation, Corporations, Commercial Court

This is an issue which arises with some frequency in commercial matters, for all sorts of reasons.

Although the rules are fairly clear (yes, legal representation is required in the higher courts), the determination of the matter isn’t always clear-cut. Here are the principles that assist with working through the issue.

Construction of contracts

February 19, 2018 by JW in Contracts, Ambiguous contract, How to construe contract

How should lawyers construe an ambiguous contract? Does Codelfa still apply?

Security for costs

February 01, 2018 by JW in Civil litigation, Civil Procedure, County Court of Victoria, Supreme Court of Victoria, Procedure, Advocacy, Security for costs

A broad overview of the main discretionary issues to consider when applying for, or resisting, a security for costs application.

How to set aside a default judgment

January 08, 2018 by JW in Default Judgment, Supreme Court of Victoria, Procedure

Every year, thousands of default judgments are entered in the court system. Many can be for substantial sums of money. These applications are frequently dealt with by the courts. Here are the key procedures and principles for setting aside a default judgment.

Commercial Court digital paperless strategy

November 30, 2017 by JW in Civil Procedure, Civil litigation, Practice Notes, Supreme Court of Victoria, Technology

The Supreme Court's has ambitions to achieve an end-to-end paperless court and trial system. The Court is determined not to allow its 19th century building get in the way of 21st century trials. A full copy of the paper is available here.

Documentary advocacy in commercial trials: what does the judge want?

October 04, 2017 by JW in Procedure, Civil Procedure, Practice Notes, Civil litigation, Court Books, Advocacy, Technology

Here are ten tips to prepare for a commercial trial, based on a paper prepared by Justice Hargrave (principal judge of the Supreme Court’s Commercial Court) in 2017, and a previous version of the paper from 2014.

In short, good advocacy involves strategic out-of-court preparation, including considered ‘documentary advocacy’, awareness of the Civil Procedure rules, harnessing technology, and early analysis and editing of the case.

Summary judgment

September 11, 2017 by JW in Procedure, Summary Judgment, Order 22

Plaintiffs may apply for summary judgment where a defendant files a defence and there is ‘no real prospect of success’ on the defence. This post sets out the essential procedures and principles for obtaining summary judgment.

Warning for lawyers dealing with Security of Payment Act claims

July 23, 2017 by JW in Contracts, Payment Claims, Debt recovery

The Legal Practitioners Liability Committee has published a warning on its website for legal practitioners who may fail to follow the very strict requirements set out in the Building and Construction Industry Security of Payment Act 2002 (Vic).