By: Lee Filkin, Lawyer, MST Lawyers A recent New South Wales Court of Appeal decision in 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 72 has highlighted the importance of rectifying inaccurate data in your company’s public record within the Australian Securities and Investments Commission (ASIC) register and not allow unauthorised persons to hold out that they have authority to bind your company. Background In this case, an individual named Scott Chan fraudulently portrayed himself as the agent of a company. This company (183 Eastwood) owned a proper ..read more

By Alicia Hill, Principal and Harriette Singh, Law Clerk Introduction On 25 August 2022, the New South Wales Court of Appeal hear the case of Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd and other related matters [2022] NSWCA 160. The Court of Appeal held that the appellants face a high burden when appealing findings of fact, and acknowledged the difficulties for appeal Courts in addressing issues of witness credibility. Background In 2013 five companies, Earth Civil Australia Pty Ltd (Earth Civil), Bluemine Pty Ltd (Bluemine), RCG CBD Pty Ltd (RCG), Diamondwish Pty Ltd (Diamondwish) and Ra ..read more

By Mark Skermer, Principal, and Darsh Chauhan, Law Clerk Introduction On 24 April 2023 the Court of Appeal of Supreme Court of Queensland delivered judgment in the matter of Allied Rural Pty Ltd v Stimpson [2023] QCA 077. The Court unanimously held that the administrator’s appointment to the company was valid and that the variation by the prior Court to his remuneration was justified. This article examines why the Court of Appeal of Queensland determined that an increase in the administrator’s remuneration ordered by a prior Court was reasonable in the circumstances. Background Allied Rural Pt ..read more

By Mark Skermer, Principal, and Darsh Chauhan, Law Clerk Introduction On 8 March 2023 the High Court of Australia delivered judgment in the matter of Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6. The Court unanimously held that the vendor party to the contract was not in breach of a provision requiring it to ‘carry on the Business in the usual and ordinary course as regards its nature, scope and manner’ by its failure to fully operate the hotel business following a declaration by the Minister restricting trading hours in response to the COVID-19 pandemic. Background The pa ..read more

By Lee Filkin, Lawyer and Alicia Hill, Principal Recent Australian developments in the law of defamation have imposed increased evidentiary burdens on plaintiffs. Does this mean it is harder for plaintiffs to make a claim for defamation? Or is it now also easier for publishers of defamatory material to get away with it? This article addresses the changes and considers the implications for those wanting to bring a defamation claim. Background On 1 July 2021 the Model Defamation Amendment Provisions 2020 (MDPs) commenced in Victoria, New South Wales, Queensland, South Australia and the Australia ..read more

By Alicia Hill, Principal and Robert Kukuruzovic, Law Clerk The Supreme Court recently allowed a method of rent review which assessed the total value of a subdivided property and then split that amount between the multiple lot owners. While this appeared to sit outside the bases for rent review allowed by legislation, the Court found that it was permissible. This article reviews the case to explain how the clause was found not to be in breach of the Retail Leases Act 2003 (Vic). Facts This case was an appeal from VCAT by two Appellants, Bojan Krajcar and Krajcar Family Pty Ltd. They were the L ..read more

By Alicia Hill, Principal and Matthew Deetlefs, Law Clerk During insolvency proceedings, administrators will generally be entitled to draw remuneration for their work from the assets of the company. However, where a company operates as a trustee or interim receivers were appointed before the administrators, there may be issues relating to the availability of assets to be drawn on for remuneration . This is particularly the case where the company’s operations were legally problematic, as was the case in Australian Securities and Investments Commission v Marco (No 9) [2021] FCA 1306. In this cas ..read more

By Alicia Hill, Principal and Robert Kukuruzovic, Law Clerk The New South Wales Supreme Court was asked to decide in Dymocks Franchise Systems (NSW) Pty Ltd v Chapter Three Pty Ltd [2022] NSWSC 35, what costs should be awarded, where there was no actual judgement on the merits of the case and the franchise agreement contained clauses which provided the franchisee was to pay the franchisor’s costs. Facts: The Franchisor, Dymocks, entered into a franchise agreement with the Franchisee, Chapter Three Pty Ltd, in 2015 for the Castle Hill Dymocks, with Ms Meenakshi Kapuria as guarantor. The Agreeme ..read more

When parties enter into a commercial agreement, they may seek to safeguard their commercial interests in certain events by way of a restraint clause (Restraint Clauses).   Restraints Clauses are often found in commercial agreements, such as partnership or shareholders agreements, franchise agreements and business or share sale agreements and employment agreements.   While Restraint Clauses may be included and accepted in commercial agreements on a regular basis, sometimes it is not fully understood if and how these seemingly standard and certain terms can actually be enforced. T ..read more

By Alicia Hill, Principal and Matthew Deetlefs, Law Clerk In RFY v ACV (Residential Tenancies) [2021] VCAT 865, VCAT allowed a tenant to be evicted after the protections afforded to tenants under section 542 of the Residential Tenancies Act 1997 were repealed. Regulation 14 of the COVID-19 Omnibus (Emergency Measures) Transitional Regulations 2021 only prevented the landlord from seeking rental arrears and did not prevent eviction. The evicted tenant appealed. The Victorian Supreme court handed down its decision in Markiewicz v Crnjac [2021] VSCA 290. Background: Section 542 of the Residential ..read more