Applications to set aside a statutory demand: can supplementary materials be filed after the 21-day affidavit?

July 05, 2018 by JW in Corporations Act, Commercial Court, Section 459G, Statutory Demands, Application to set aside, Genuine dispute, Some other reason

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?

Oppression proceedings: key principles and procedures

June 19, 2018 by JW in Civil litigation, Corporations Act, Oppression proceedings, Section 232 Corps Act, Section 233 Corps Act, Section 461 Corps Act, Section 467 Corps Act, Oppression

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.

Oppression proceedings: when will the court decline to wind-up a company?

June 17, 2018 by JW in Oppression proceedings, Section 461 Corps Act, Section 467 Corps Act, Section 232 Corps Act, Section 233 Corps Act, Corporations Act

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").

How to get a freezing order

June 06, 2018 by JW in Civil litigation, Civil Procedure, Procedure, Freezing Order, Asset Preservation Order, Rule 37A Supreme Court, Practice Note SC Gen 17, Mareva 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.

Strike out applications

May 14, 2018 by JW in Commercial Court, Procedure, Strike out application, Order 23

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.

Claims can be made against single project developers under the Security of Payments Act

March 23, 2018 by JW in Contracts, Debt recovery, Payment Claims

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.

Do companies require legal representation?

March 22, 2018 by JW in Supreme Court of Victoria, Rule 1.17(1), Legal representation, Corporations, Commercial Court

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.

Statutory demands: Court of Appeal affirms principles for setting aside in recent cases

March 08, 2018 by JW in Statutory Demands, Section 459G

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.

Construction of contracts

February 19, 2018 by JW in Contracts, Ambiguous contract, How to construe contract

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

Security for costs

February 01, 2018 by JW in Civil litigation, Civil Procedure, County Court of Victoria, Supreme Court of Victoria, Procedure, Advocacy, Security for costs

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

How to issue a statutory demand

January 17, 2018 by JW in Statutory Demands

A 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.

How to set aside a default judgment

January 08, 2018 by JW in Default Judgment, Supreme Court of Victoria, Procedure

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.

Commercial Court digital paperless strategy

November 30, 2017 by JW in Civil Procedure, Civil litigation, Practice Notes, Supreme Court of Victoria, Technology

The Supreme Court's has ambitions to achieve an end-to-end paperless court and trial system. The Court is determined not to allow its 19th century building get in the way of 21st century trials. A full copy of the paper is available here.

Landlords: What are your repair and maintenance obligations?

November 22, 2017 by JW in Retail Leases Act, Retail Leasing, Landlord, Commercial Leases, Repair and maintenance, Section 52 RLA

Commercial 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?

Can a statutory demand be served on an incorporated association?

November 17, 2017 by JW in Commercial Court, Corporations Act, Statutory Demands, Section 459G, Section 459H

Can 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)?

Relief against forfeiture - saving a commercial tenancy

October 16, 2017 by JW in Retail Leasing, VCAT, Tenant, Landlord, Commercial Leases, Supreme Court of Victoria, Relief against forfeiture, Retail Leases Act, Property Law Act

Relief 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.

Documentary advocacy in commercial trials: what does the judge want?

October 04, 2017 by JW in Procedure, Civil Procedure, Practice Notes, Civil litigation, Court Books, Advocacy, Technology

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.

Summary judgment

September 11, 2017 by JW in Procedure, Summary Judgment, Order 22

Plaintiffs 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.

Warning for lawyers dealing with Security of Payment Act claims

July 23, 2017 by JW in Contracts, Payment Claims, Debt recovery

The 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).

Penalty clauses: when is a provision a penalty and thus void?

July 03, 2017 by JW in Breach of contract, Contracts, How to construe contract, Termination of contract

The 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.