Security for costs - a ready reference guide
A copy of the paper on security for costs that I presented at a CPD conference yesterday.
Read MoreInsurance list - Supreme Court of Victoria's Commercial Court
Last week the Judge in charge of the Supreme Court’s Insurance list (in the Commercial Court) spoke about two things:
1) Why commence insurance litigation in the SCV?
2) How do listings and allocations take place?
Read MoreMisleading and deceptive conduct in the sale of a 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.
Read MoreFinally, the Supreme Court rules allow single exhibit certificates
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.
Read MoreThird party proceedings
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.
Read MoreThe loan, guarantee and wife. What is the law?
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?
Read MoreWhat constitutes a ‘memorandum or note’ pursuant to section 126 of the Instruments Act?
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)
Read MoreRestraining the registrar of titles pursuant to Section 90(2) of the Transfer of Land Act 1958 (Vic)
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.
Read MoreNew Supreme Court filing fees from 1 October 2018
Effective today, the Supreme Court implements new fees payable under new regulations.
Read MoreOppression proceedings: key principles and procedures
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.
Read MoreOppression proceedings: when will the court decline to wind-up a company?
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").
Read MoreHow to get a freezing 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.
Read MoreStrike out applications
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.
Read MoreClaims can be made against single project developers under the Security of Payments Act
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.
Read MoreDo companies require legal representation?
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.
Read MoreConstruction of contracts
How should lawyers construe an ambiguous contract? Does Codelfa still apply?
Read MoreSecurity for costs
A broad overview of the main discretionary issues to consider when applying for, or resisting, a security for costs application.
Read MoreHow to set aside a default judgment
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.
Read MoreDocumentary advocacy in commercial trials: what does the judge want?
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.
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