The Commercial Law Barrister

Do you have carriage of proceedings in the Supreme Court of Victoria’s Commercial Court?  

If yes, this post is for you.

The Commercial Court has released an updated Practice Note SC CC 1 (second revision) which came into effect on 26 February 2024. It replaces the previous version from 21 December 2017.

The new Practice Note is refreshingly minimal, at only 11 main paragraphs. Read on for the main takeaways.

Some of the recent uncertainty regarding VCAT’s jurisdiction has resolved with the passing of the Justice Legislation Amendment Act 2023 (Vic) (JLAA) on 10 July 2023. Here’s what you need to know regarding limitations, contribution claims, and jurisdiction.

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.

There’s been a flurry of online commentary about the recent cases which have curtailed VCAT’s jurisdiction recently.

I was going to write a post about it, but then the LPLC provided this great article prepared by Moray & Agnew.

In case you missed it, below are the key takeaways from the article. Well worth a read if any part of your practice involves proceedings in VCAT.

This much discussed topic has been the subject of numerous authorities over the years, many of them well established.

Caveats are lodged all the time claiming a caveatable interest in unit trust property by unit holders and trust beneficiaries. This may be because the terms of the trust deed are silent on the question, the trust deed provisions are unclear, the authorities are nuanced, or perhaps the relevant practitioner was simply unclear on the law.

In this article, I’ll take you through CPT as well as the key state-based authorities which set out the main principles. Whether you’re applying to remove a caveat or resisting a removal application, there are good arguments both ways. I’ve set out this article to offer something for each position.

What must an affividat in support of an application to set aside a statutory demand include? The Victorian Court of Appeal in Sceam Constructions Pty Ltd v Clyne [2021] VSCA 270 has recently clarified the language around the ‘supporting affidavit’ to be filed within 21 days, and provided helpful reminders of what they should contain.

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.

Here’s what you need to know about the County and Supreme Court commercial lists and their latest procedures for hearings during the COVID-19 outbreak.

The County Court has released a new Commercial Division Practice Note ‘Operation and Management of the Commercial Division’ PNCO 1 – 2019 (updated as at 26 March 2019) which supercedes eight previous practice notes. It deals with most issues concerning the running of commercial matters.  

The new practice note puts the County Court Commercial Division on a competitive footing with the Supreme Court’s commercial court, offering faster trial dates (within 6 months for standard matters), an Expedited Matters List (trial dates within 4 months), trial date certainty, unlimited jurisdiction regarding quantum, and efficient disposition of interlocutory steps. 

‘Contribution and indemnity’ are concepts used to identify which defendant (or third party) is liable for a plaintiff’s loss, usually in a tort or contract case. Contribution refers to the dividing up of a plaintiff’s damages between two, or multiple parties found liable.  

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 recent case of United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347 decided by Elliot J provides a good summary of the directors duties set out in the Corporations Act. Without discussing the facts or findings of this case, the summary of the duties is very useful.

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?

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)

This question arises in almost every retail lease matter involving rental arrears, termination and possession. The regime regarding uncollected goods is governed by the principles of bailment and by the Australian Consumer Law and Fair Trading Act 2012. The ACL stipulates three value categories of uncollected goods (low, medium, high) and outlines requirements for disposal of uncollected goods in each category. 

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.

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

The Supreme Court's commercial court moves closer to being paperless. 

Since the start of July 2018 all cases are being initiated, run and archived electronically.  

In short, the answer is no. Section 459G of the Corporations Act requires an application to set aside a statutory demand to be supported by an affidavit within 21 days of service of the demand. Usually the facts for the setting aside application are known within the 21-day period. 

What should you do when there are unknown facts at the time of filing the application to set aside? For example, where there are inaccessible or unverifiable documents, or you are waiting on third parties to provide materials (eg accounting information), or further discovery is required?

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. 

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").

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.

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. 

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.

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.

This 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. 

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

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