When will a court impose a trust relationship in commercial agreements such as franchises?
In Re Stay in Bed Milk & Bread Pty Ltd (In Liquidation) ACN 115 166 982 [2019] VSC 181, the Court considered whether monies paid into a marketing fund by franchisees gave rise to a trust relationship. Background and the parties’ arguments Stay in Bed Milk & Bread Pty Ltd (the Company) was the franchisor of the […]
ReadmoreeDiscovery and eTrials in the Supreme Court of Queensland
Litigation can be costly. In particular, the discovery stage can form one of the most expensive phases of the litigation process. The Court and practitioners alike are increasingly turning to technological solutions to reduce the time and cost of the discovery process. Taking into account such factors, Gadens were recently involved in a proceeding in […]
ReadmoreJudicial review – proper, genuine and realistic consideration
A recent Federal Court decision is a timely reminder that Ministers should not rely entirely on briefing notes before making decisions – and when the decision is defended, it is the Minister who is expected to give evidence. The Federal Court recently found that a Minister had failed to “consider any comments, information or documents” […]
ReadmoreTwo for one: The Court may issue two arrest warrants for failure to attend an examination
The appeal of the decision of the Federal Court in the case of Mensink v Parbery [2018] FCAFC 101 examines the governing principles the Court considers when granting: an arrest warrant to secure appearance at an examination; and an order for contempt of court for failing to comply with an order requiring attendance for examination. […]
ReadmoreUpdate on unfair preferences and statutory set-off
One of a liquidator’s most powerful tools is the ability to seek to recover unfair preferences from creditors for the purposes of increasing the pool of assets available to creditors generally. Proceedings to recover unfair preferences can be costly and it is imperative that a liquidator assess not only the evidence available to prove the […]
ReadmoreUnfair preferences and insolvent transactions – ‘knowledge’ of insolvency and the good faith defence
In Stimpson v Commissioner of State Revenue [2018] QDC 140, the District Court of Queensland considers the statutory defence under the Corporations Act 2001 (the Act) to preference or insolvent transaction proceedings. Underlying the decision is the impact increasingly automated processes may have on well-established legal principles regarding evidence of ‘knowledge’ and ‘belief’. This contributed […]
ReadmoreIs a new postal rule coming?
On 12 September 2018, the Commonwealth Senate passed the Civil Law and Justice Legislation Amendment Bill 2018 (Cth). This Bill proposes to amend section 160 of the Evidence Act 1995 (Cth). This section contains the general rule by which a postal article sent by prepaid post is presumed to be received by the recipient on […]
ReadmoreIpso facto reforms – what exceptions apply?
From 1 July 2018, new provisions introduced into the Corporations Act 2001 (Cth) (CA 2001) by the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), impose a stay on the enforcement of ipso facto clauses against a company that becomes subject to certain prescribed insolvency events. Importantly, the changes only apply to […]
ReadmoreIpso Facto Reforms
On 1 July 2018, the Australian Government’s ipso facto reforms (the Reforms) came into effect.[1] Rather than prohibiting the inclusion of ipso facto clauses, the Reforms impose statutory limitations on the enforcement of certain rights found in contracts, agreements or arrangements. It is crucial that government and government agencies understand these Reforms and take them […]
ReadmoreAmerind – insolvent corporate trustees and the Corporations Act 2001 priority regime – still a grey area
The Victorian Court of Appeal in Amerind[1] considered whether the right of indemnity from trust assets held by an insolvent trustee company is ‘property of the company’. If so, the Court considered whether the statutory scheme of priority contained in the Corporations Act 2001 (Cth) (Corporations Act) applies to the distribution of the relevant property. […]
ReadmoreFreezing orders – a refresher
What is a freezing order? Previously known as a Mareva order, a freezing order is an interlocutory order restraining a person or corporation from removing any assets located in or outside Australia or from disposing of, dealing with or diminishing the value of, those assets. What is the purpose of a freezing order? The purpose […]
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