The introduction of Domestic Building Dispute Resolution Victoria

The introduction of Domestic Building Dispute Resolution Victoria

In May 2015, the Victorian Auditor-General’s Office produced a report which was titled ‘Victoria’s Consumer Protection Framework for Building Construction’. The report was highly critical of the level of protection given to consumers in the domestic building space.

Sladen Snippet - Overarching obligations and the Court’s discretion to award costs

Sladen Snippet - Overarching obligations and the Court’s discretion to award costs

The Civil Procedure Act 2010 (Act) provides the Court with a relatively broad power to make orders in respect of a person that has breached any overarching obligation in the Act. In particular, section 29 of the Act gives the Court the discretion to sanction parties and/or lawyers by making costs orders against them. Yara Australia Pty Ltd v Oswal  (Yara) is one of the most publicised cases to examine the scope of the Court’s discretion under section 29 of the Act. 

Sladen Snippet - Lawyer's immunity from suit

Sladen Snippet - Lawyer's immunity from suit

Australia has for a long time been one of the only common law countries to enshrine a lawyer’s immunity from suit. The common law principle provides lawyers with an immunity from any claim made against them for negligence arising out of their conduct of a Court case and/or work undertaken outside of Court that results in a decision affecting the conduct of the case in Court. 

Sladen Snippet – Property purchaser’s notice of termination was ineffective because emailed to vendor’s agent.

Sladen Snippet – Property purchaser’s notice of termination was ineffective because emailed to vendor’s agent.

On 11 March 2016 the Supreme Court of Victoria held that a purchaser's notice of termination was ineffective because it was given to a real estate agent. The Court decided that the estate agent’s role was confined to a marketing and sales mandate, with the consequence that the agent did not have the authority to receive a notice of termination. The Court’s analysis considered the scope of the estate agent’s ostensible authority, implied authority and authority under the Sale of Land Act 1962. There may of course be a different result in other circumstances, for example if the evidence shows that a vendor makes it clear that the estate agent has a much broader role than the Court identified here.

Top-up security for costs where proceeding funded

Top-up security for costs where proceeding funded

During the trial of a class action a plaintiff was ordered to provide security for costs, at pain of the proceeding being stayed. The case settled not long after. In another case, a delay in an application for security for costs did not prevent it being ordered, however the Court adjusted the period of costs secured.

The pitfalls of negotiation via email

The pitfalls of negotiation via email

In the case of Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015], the Queensland Supreme Court recently held that negotiations via a chain of emails resulted in a binding contract, despite the email communication stating that the terms of agreement were subject to a signed contract. The judgment serves as a warning to those involved in the negotiation of a contract via email correspondence.

“Treasurer for Sale” case provides example of the operation of Australia’s defamation laws

“Treasurer for Sale” case provides example of the operation of Australia’s defamation laws

The recent case of Hockey v Fairfax Media Publications Pty Ltd provides an interesting example of the application of Australia’s defamation laws to social media publications and matters of public interest.

Treasurer, Joe Hockey brought a defamation claim against three newspaper publishers in regards to articles published on 5 May 2014 in the Sydney Morning Herald, The Age, The Canberra Times and online platforms controlled by those newspapers. The articles detailed the operations of a club, the North Sydney Forum and its connection to the Liberal Party. The articles said that through the North Sydney Forum, Mr Hockey was providing "privileged access" to a select group in return for donations to the Liberal Party without full disclosure to the election funding authorities. The words "Treasurer for Sale" or "Treasurer Hockey for Sale" were prominent in the articles. Although critical of the fundraising activities, the articles included some balancing comments and stated that the fundraising activities were legal.

Sladen Snippet – An expensive conversation – the dangers of verbal agreements

Sladen Snippet – An expensive conversation – the dangers of verbal agreements

A recent judgment of the New South Wales Supreme Court serves as an important reminder that verbal agreements can be just as enforceable as written agreements. In the case of Yulema Pty Ltd & Anor v Simmons & Anor [2015], the Supreme Court upheld contractual obligations imposed by a verbal agreement in October 2009. As a result, the defendant was required to pay the plaintiff approximately $350,000 plus interest from May 2011. It is significant to note that the Court upheld the agreement notwithstanding that one of the parties involved in the negotiations was unable to give evidence because they had passed away.

Sladen Snippet – Bill to extend application of unfair contract provisions to small business contracts

Sladen Snippet – Bill to extend application of unfair contract provisions to small business contracts

The unfair contract provisions under the Australian Consumer Law (ACL) provide that terms in “standard form” contracts that are “unfair” under the legislation can be declared void. The provisions apply to contracts for the supply of goods or services or a sale or grant of an interest in land for personal, domestic or household use or consumption. There are similar provisions in the Australian Securities and Investments Commission Act 2001  applying to the sale of financial products and services.

Sladen Snippet – The overuse and misuse of the “without prejudice” privilege

Sladen Snippet – The overuse and misuse of the “without prejudice” privilege

The phrase “without prejudice” is commonly overused and misunderstood. When using the phrase, people should be mindful that simply labelling communication “without prejudice” does not automatically guarantee the privilege. Rather, the surrounding circumstances and the content of the communication will be taken into consideration when determining whether the privilege applies.

The importance of dealing with statutory demands in a timely manner

The importance of dealing with statutory demands in a timely manner

When served with a statutory demand a company has 21 days to pay the debt, negotiate an outcome or apply to have the statutory demand set aside. Upon the expiration of 21 days the company is deemed insolvent and an application can be made to wind it up. 

Following this expiration date, the company cannot make an application to set aside the statutory demand, even if it has grounds to do so. Instead, it has to oppose the winding up application if it is to avoid being wound up. The most common ground for setting aside a statutory demand is that the debt is in dispute.

Legal matters: Schools and data privacy

Legal matters: Schools and data privacy

Schools collect and receive personal and sensitive information on a daily basis. What are the legal requirements for managing and using this data?

Much of the personal and sensitive information collected by schools is, of course, essential to their day-to-day running.

This information can relate to students, parents and guardians, job applicants, staff members, volunteers and contractors, and others who come into contact with the school.

Following significant changes to the Privacy Act 1988 (Act), which took effect from 12 March 2014, schools need to consider how they use and manage such information, so as to avoid significant penalties.

Sladen Snippet - Court awards indemnity costs where caveat lodged without proper grounds

Sladen Snippet - Court awards indemnity costs where caveat lodged without proper grounds

On 23 April 2015, the Supreme Court ordered a party who lodged a caveat without proper grounds to pay the other party’s costs on an indemnity basis.  The defendant lodged a caveat on the title of a property claiming an interest pursuant to a purchaser’s contract. 

The plaintiff landowner stated that he did not enter into any contract with the defendant and moreover had never met the defendant or had any dealings with the defendant.  The Court ordered that the defendant pay the plaintiff’s costs on an indemnity basis because the Court inferred that the defendant, at no time, had any valid basis upon which he could claim a caveat over the property. 

Sladen Snippet – The Federal Court rules against the use of agreed penalties

Sladen Snippet – The Federal Court rules against the use of agreed penalties

On 1 May 2015 a unanimous judgement was handed down by the Full Court of the Federal Court, stating that in deciding the outcome of a case, the court would no longer receive or act upon any agreement as to penalties previously agreed to between parties.

This followed a recent High Court judgement, which held that the regular practice in Victoria of permitting the prosecution to make submissions on the available sentence range or outcome in criminal cases should cease. The High Court held that such submissions by a prosecutor were inadmissible on the basis that they were a statement of opinion not a submission of law.

Insolvent trading and liability for shadow / de facto directors

Insolvent trading and liability for shadow / de facto directors

Overview

In the recent case of Featherstone v D J Hambleton as liquidator of Ashala Pty Ltd (Featherstone Case), the Queensland Court of Appeal considered the circumstances in which a shadow/de facto director may be caught under the insolvent trading provisions of the Corporations Act 2001. Section 588G of the Act deals with the liability of directors for insolvent trading by their company, which not only applies to directors, but also to any employee determined to be a ‘director’ of a company when the company incurs the debt.

The duty of company directors to avoid conflicts of interest: an illustrative case

The duty of company directors to avoid conflicts of interest: an illustrative case

Directors are required to act in the best interests of the company, and to fulfil this duty they must avoid conflicts between their own interests and the interests of the company. As a recent case illustrates, a failure to avoid perceived conflicts can lead to disputes with shareholders.

In the case of Hart Security Australia Pty Ltd v Boucousis & Ors, Hart Security Australia Pty Ltd’s (HSA) majority shareholders, the Hart Group, alleged that HSA’s sole director, Christian Boucousis breached his duty to avoid conflicts of interest.