Commercial Division Decisions

August 2017

August 31, 2017
His Honour Judge Cosgrave
Catchwords:
REAL PROPERTY – ADVERSE POSSESSION – EASEMENTS

June 2017

June 30, 2017
Judicial Registrar Burchell
Catchwords:
Application to set aside default judgment.
June 20, 2017
Her Honour Judge Marks
Catchwords:
STATUTORY CONSTRUCTION - Construction Industry Long Service Leave Act 1997 (Vic)
June 9, 2017
Her Honour Judge Lewitan
Catchwords:
Retainer to act as solicitor; misleading or deceptive conduct; damages for loss of opportunity

May 2017

May 30, 2017
His Honour Judge Cosgrave
Catchwords:
DEFAULT JUDGMENT; SUMMARY JUDGMENT; COSTS
May 29, 2017
Her Honour Judge Lewitan
Catchwords:
Defendants’ application for summary judgment; application to set aside judgment on the basis of fraud; witness immunity; advocates immunity; conspiracy to give and procure false evidence
May 26, 2017
His Honour Judge Anderson
Catchwords:
Contract – Deed – Loan agreement to facilitate the purchase of a residential property – Borrower the nephew of the lender – Whether when the deed was executed it was to have legal effect
May 19, 2017
His Honour Judge Anderson
Catchwords:
Contract – Franchise agreement – Whether failure by the franchisor to comply with the Franchising Code of Conduct – Whether relief should be granted – Loss of opportunity damages claimed.
May 9, 2017
His Honour Judge Macnamara
Catchwords:
Investment of moneys in “blocked account”; which trust terms applied to investment; trustee releasing funds from blocked account and remitting fund to 3rd party; fund irrecoverable; whether fraudulent breach of trust by 1st defendant
May 3, 2017
Hi Honour Judge Macnamara
Catchwords:
Loan contract; discrepancy between recitals as to total amount owing; whether constituting common or mutual mistake avoiding loan contract; errors in non-operative portions of agreement not sufficiently fundamental to avoid loan agreement;
May 3, 2017
His Honour Judge Anderson
Catchwords:
Building contract – Payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic) (“the Act”) – Trust established with the purpose of making investments in the property market
May 2, 2017
His Honour Judge Cosgrave
Catchwords:
INJUNCTIONS – interlocutory injunctions – Mareva orders – principles applicable – sufficiency of evidence as to risk of dissipation – risk to be inferred from circumstances giving rise to cause of action – allegations of dishonesty and fraud

April 2017

April 3, 2017
His Honour Judge Anderson
Catchwords:
Practice and procedure – Costs – Offer of compromise by the plaintiff – “Claim to which the offer relates” – Statement of claim served with the writ included a claim based on contract – Amendment after the offer introduced a quantum meruit claim

March 2017

March 31, 2017
His Honour Judge Macnamara
Catchwords:
Loan; moneys had and received; application for freezing order; interim settlement agreement; lodgement of caveat; nature of interest; whether interim agreement created a caveatable interest; whether caveat valid
March 30, 2017
Her Honour Judge Marks
Catchwords:
Franchise Agreement - Unconscionable Conduct - Penalty - Laches
March 22, 2017
His Honour Judge Cosgrave
Catchwords:
Breach of agreement containing regular payment obligations – whether total failure of consideration - where party does not have legal title to goods to be transferred as consideration under agreement - whether agreement void ab initio
March 22, 2017
His Honour Judge Anderson
Catchwords:
Fiduciary obligations – Adventure golf course designed and constructed by the plaintiff on land occupied by the defendant pursuant to an agreement with Parks Victoria - Whether joint venture gave rise to a fiduciary obligation
March 17, 2017
His Honour Judge Cosgrave
Catchwords:
Breach of contract and duty of care – negligent misstatement – pure economic loss – whether financial adviser owed duty of care to prospective client to avoid pure economic loss – whether breach of statutory duties imposed on financial advisors
March 14, 2017
His Honour Judge Macnamara
Catchwords:
Application to court to reopen its decision prior to authentication; supplementary submissions sought post-trial prior to publication of decision; scope of submissions; scope of pleadings; procedural fairness
March 8, 2017
His Honour Judge Macnamara
Catchwords:
Loan agreement; purpose of loan; disclosure; unconscionability; adequacy of legal advice; asset lending; applicability of Credit Codes

February 2017

February 23, 2017
Her Honour Judge Marks
Catchwords:
Construction of lease and deed of assignment – Where continuing obligation of former tenant for outgoings where lease assigned – Where ambiguous clause - Where notice of estimated outgoings not given.
February 22, 2017
Her Honour Judge Marks
Catchwords:
Daughter seeks transfer of property by mother to her, relying on Trust Deed – Mother alleges life interest in property – Interpretation of Trust Deed – Whether creation of life interest by way of estoppel – Whether detriment suffered.
February 17, 2017
His Honour Judge Anderson
Catchwords:
Building contract – Payment claim response took account of previously certified liquidated damages – Whether liquidated damages wrongly deducted from claim – Adjudicator’s determination in favour of claimant
February 10, 2017
His Honour Judge Anderson
Catchwords:
Contract – An individual entering into an agreement referred in correspondence and discussions to the business entity as All Trade Training – No mention was made that there was a company – Whether the agreement was with the individual or the company

January 2017

January 25, 2017
His Honour Judge Cosgrave
Catchwords:
Whether real estate agent entitled to commissions under exclusive agency agreement – when contract becomes “unconditional” - when commission is earned – when commission is payable – where original contracts of sale rescinded

December 2016

December 14, 2016
His Honour Judge Anderson
Catchwords:
Practice and procedure – Interest on judgment – “Demand of payment” – Demand not made by the successful plaintiff

November 2016

November 28, 2016
His Honour Judge Anderson
Catchwords:
Practice and procedure – Application for security of costs – Complex litigation relating to misuse of “trade secrets”
November 25, 2016
His Honour Judge Anderson
Catchwords:
Building Contract – Payment claim under the Building and Construction Industry Security of Payments Act 2002 (Vic)
November 18, 2016
His Honour Judge Anderson
Catchwords:
Contract – Written agreement for the production and supply of alcoholic beverages – Process for the ordering of the product – Whether obligation to supply if procedures not followed
November 14, 2016
His Honour Judge Anderson
Catchwords:
Practice and procedure – Multitude of proceedings and applications arising from orders and judgments - Summary of events to date and likely steps necessary before all issues are concluded.

October 2016

October 26, 2016
His Honour Judge Anderson
Catchwords:
Contract – Joint venture to redevelop residential property with two units – Terms for repayment of capital instalments

September 2016

September 23, 2016
His Honour Judge Anderson
Catchwords:
Practice and procedure – Security for costs – Franchisee bringing action against franchisor for failure to disclose a possible or likely change in its system of operations.
September 23, 2016
His Honour Judge Anderson
Catchwords:
Practice and procedure – Warrant of seizure and sale – Auction by sheriff unsucessful – Application for further auction “without reserve” – Whether order for sale should be made – Order refused – Humphreys v. Pioneer Homes Australia Pty Ltd [2000]
September 23, 2016
His Honour Judge Anderson
Catchwords:
Legal practitioners – Costs agreement – “No win-no fee” – Whether costs agreement and disclosure statement should have been translated into the Serbian language.
September 21, 2016
His Honour Judge Anderson
Catchwords:
Application to set aside default judgment entered in December 2004 – Application to set aside judgment made in January 2005 dismissed in May 2005

August 2016

August 30, 2016
His Honour Judge Macnamara
Catchwords:
Misleading and deceptive conduct – contract – monies had and received

July 2016

July 15, 2016
Her Honour Judge Cohen
Catchwords:
Loan agreement - Whether loan amount advanced - Penalty Interest Act 1983 - Judgment for the plaintiff

May 2016

May 17, 2016
Her Honour Judge Kennedy
Catchwords:
Taxation – director’s liability for penalties for unpaid employee deductions - whether defences available under section 269-35 of Schedule 1 of the Taxation Administration Act 1953
May 6, 2016
Judge Anderson
Catchwords:
Practice and procedure – Claim for solicitor’s costs – Statute of limitations – Whether cause of action accrued six years after the date of the last work performed as claimed in the bill of costs

April 2016

April 22, 2016
Judge Anderson
Catchwords:
Practice and procedure – Application for a stay of the proceeding – Appropriate court to determine the dispute – Policy of insurance entered into in New Zealand – Claim made relating to events occurring primarily in Victoria
April 22, 2016
Anderson
Catchwords:
Building contract – Payment claims – Conflicting evidence as to the identity of the parties to the “construction contract” to whom the claims related – Building and Construction Industry Security of Payment Act 2002 (Vic)
April 7, 2016
Anderson
Catchwords:
Trusts – Family home in the joint names of a husband and wife – Property sold as a result of a Family Court order – Purchased by a daughter and placed in joint names of the daughter and her mother

March 2016

March 18, 2016
Judge Anderson
Catchwords:
Contract – Alleged agreement between developers of adjoining land – Contribution to be made by one developer towards the costs of the other constructing a sub-divisional road on the common boundary – Whether agreement established
March 10, 2016
Judge Anderson
Catchwords:
Mortgage – Assignment of securities by bank to guarantor – Effectiveness of deed between the registered proprietor of a property and a company in liquidation which had guaranteed a bank loan to the registered proprietor – Payment by guarantor to the bank

December 2015

December 1, 2015
Judge Anderson
Catchwords:
Practice and procedure – Summary judgment application – Guarantee and indemnity – Sufficiency of plaintiff’s disclosure of documents – Whether variation made to terms of trade with principal debtors without notice to guarantor – Whether plaintiff required

November 2015

November 27, 2015
Judge Kennedy
Catchwords:
MORTGAGES - statutory power of sale by mortgagee - Transfer of Land Act 1958, s77(1) - whether wife had equitable interest in the property - content of mortgagee’s duty - whether mortgagee breached its duty, in particular, by release of a flora and fauna

May 2015

May 22, 2015
Judge Lewitan
Catchwords:
Construction of Lease, fair wear and tear, structural repairs, make good provisions