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 MoreIn 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 MoreA 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 MoreIf 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 MoreIn 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 MoreThis 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 MoreThis post considers two recent cases in the Victorian Court of Appeal where applications to set aside statutory demands pursuant to section 459G of the Corporations Act were appealed:
1) Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 5
2) Go Connect Ltd v Sino Strategic International Ltd (in Liq) [2016] VSCA 315
Both cases affirm the principles applicable in applications to set aside a statutory demand.
Read MoreHow should lawyers construe an ambiguous contract? Does Codelfa still apply?
Read MoreA broad overview of the main discretionary issues to consider when applying for, or resisting, a security for costs application.
Read MoreA broad overview of how insolvency law may assist in the context of debt recovery with speed and economy for your client using the statutory demand regime.
Read MoreEvery 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 MoreCommercial tenancies, particularly for large properties with long tenancies that may extend over decades, can present challenges for landlords and tenants when it comes to repairs and obligations.
What are your repair and maintenance obligations? What is fair wear and tear? What does section 52 of the Retail Leases Act provide?
Read MoreCan a statutory demand pursuant to section 459E of the Corporations Act be served on an incorporated association registered under the Associations Incorporation Reform Act 2012 (Vic)?
Read MoreRelief against forfeiture protects a tenant against the loss or determination of an estate or interest in property, or a proprietary right, either in consequence of a failure to perform a covenant or condition or in consequence of the determination of the contract for some other reason. This article summaries the key principles and provides tips for tenants applying for relief, and landlords opposing an application.
Read MoreHere 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.
Read MorePlaintiffs 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.
Read MoreThe 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).
Read MoreThe Victorian Court of Appeal has summarised the law of penalties in Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd [2017] VSCA 161 (23 June 2017) per Maxwell P, Kyrou JA and Cameron AJA.
Read MoreThe Supreme Court of Victoria uses a checklist to 'groom' applications to set aside statutory demands for any problems before the first return of the matter for directions. The checklist is attached below.
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