The 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.
Read MoreThe Court of Appeal in Imagebuild Group Pty Ltd v Fokust Pty Ltd [2017] VSCA 131 (31 May 2017) has confirmed that affidavits in support of applications to set aside statutory demands cannot merely explain the delay in filing an affidavit in support within 21 days of the statutory demand being served (pursuant to s 459G(2) and (3) of the Corporations Act 2001).
However an affidavit filed and served within 21 days which explains delay and verifies on the basis of instructions or otherwise the contents of a ‘foreshadowed affidavit’ to be sworn, may be sufficient to constitute a supporting affidavit.
Read MoreThe full article (5214 words) considers:
Re-entry by proceedings
Making an ‘unequivocal claim’ for possession
Fundamental breach and repudiation
When is a breach fundamental?
Repudiation
Loss of bargain damages
Waiver
Notice requirements
Defective Notices
Time limits for remedying a notice
Service of a notice
What if the tenant has a counterclaim?
The nature of set-off
Equitable set-off
Effect of ouster clauses
Barristers are asked all the time whether an informal agreement is binding. By informal agreement, I mean a consensus of sorts arrived at between parties which is not recorded in any elaborate formal document.
Informal agreements may be made by:
1) Oral agreement;
2) The exchange of correspondence;
3) Heads of agreement; or
4) A memorandum of understanding.
Following the making of an informal agreement, parties often continue to negotiate in the expectation that they will be able to incorporate further terms – yet to be agreed – in the formal document.
In the event that the formal document is not executed, a question arises: Is the agreement legally binding and enforcible? It’s a deceptively simple question but not always easy to answer.
Read MoreSince the automatic right of appeal to the Victorian Court of Appeal was removed in November 2014, parties wishing to appeal must generally apply for leave to appeal. There is no entitlement to an oral hearing, though one may be requested.
Read MoreAre you a solicitor acting for a contractor or sub-contractor owed outstanding progress payments for works pursuant to a construction contract (within the meaning of the Domestic Building Contracts Act)?
If so, a Payment Claim under the BCISP Act (“Act”) may be a relatively speedy way to recover this sum for your client.
Read MoreWhether acting for a landlord or tenant, the eviction of commercial tenants is vastly different to the rules governing the eviction of residential tenants. This is because the Courts and VCAT consider commercial tenancies to be long-term binding contracts between commercial parties.
While residential tenancy rules in Victoria allow landlords to evict tenants for little reason or no reason at all (in 120 days), the law treats commercial tenancies very differently. There are more protections in place for commercial tenants to ensure they can build a business from a premises and potentially sell any goodwill attached to a particular location.
Termination of commercial tenancies involves knowledge of the principles of contract law, termination and waiver, notices, the Property Law Act (section 146), equitable set-off, exercise of options, and other common law concepts such as taking possession and conversion of goods.
Read MoreA checklist for practitioners preparing an application to remove a caveat
Read More*Article updated July 2022*
Caveat removal applications are frequently brought in the commercial lists of the Supreme and County Courts. The legal tests for their removal are settled and relatively certain, though some details require careful attention.
Read MoreStatutory demands issued for a non-judgment debt must be accompanied by an affidavit which states, inter alia, the deponent’s belief that that there is no genuine dispute about the debt.
Read MoreIn a recent case before an Associate Justice in the Supreme Court of Victoria (unreported) a creditor who issued a statutory demand pursuant to a judgment debt and claimed additional interest without a verifying affidavit withdrew the demand. The court ordered the creditor to pay the alleged debtor's costs on an indemnity basis.
Read MoreFrom 29 February 2016, the Supreme Court will no longer hear urgent applications involving a commercial dispute in the general practice court, but by referral to the Commercial Court duty judge or Corporations List managing judge.
This procedure applies for all the common urgent commercial applications: injunctions, caveat removals, mareva and freezing orders.
Read MoreThe terms of s 459H of the Corporations Act and the authorities make clear that, on an application to set aside a statutory demand, the applicant is required only to establish a genuine dispute or offsetting claim. The applicant is required to evidence the assertions relevant to the alleged dispute or offsetting claim only to the extent necessary for that primary task.
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