2012 – Case reviews

February

Deputy Commissioner of Taxation v National Skin Institute (Aust) Pty Ltd [2012] FCAFC 2 – Full Federal Court rules on the Commissioner’s practice re affidavits in support of winding up applications

Re Willmott Forests Ltd [2012] VSC 29 – disclaimer of onerous property by liquidators – does the disclaimer of a lease by the landlord company’s liquidator extinguish the tenant’s proprietary interest in the land?

Kirby v Centro Properties Limited (No 2) [2012] FCA 70 – legal professional privilege (includes a discussion of developments in the substantive Centro class action taking place at that time)  **See also the revised/extended published article on this decision here.

March

Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 – de facto directors and officers – directors duties and misappropriation of funds – secret commissions / bribes – Barnes v Addy (both limbs) – equitable remedies and their flexibility – liability to account and account of profits – constructive trusts

Kassem and Secatore v Commissioner of Taxation [2012] FCA 152 – third party preferences and ATO reallocation of payments to different internal accounts

  • See also Full Federal court appeal of August 2012, listed below

Equuscorp Pty Ltd v Haxton [2012] HCA 7 – restitution, failure of consideration, money had and received, unjust enrichment

Modra v State of Victoria [2012] FCA 240 – costs ordered against solicitor personally – ss 37M and 37N of the Federal Court Act (the case is discussed in body of article on developments in Centro) 

April

Re Willmott Forests Ltd (No 2) [2012] VSC 125 – section 511 – does it empower the Court to make orders directly affecting the rights and liabilities of third parties? – scheme land not “scheme property” – the position of and duties of liquidators of responsible entities (RE’s)

May

“James Hardie” – ASIC v Hellicar & Ors [2012] HCA 17; Shafron v ASIC [2012] HCA 18  directors duties – minutes of board meetings and the evidentiary value to be accorded minutes kept as official records of meetings (brief summary only)

Deputy Commissioner of Taxation v Manta’s on the Beach Pty Ltd [2012] FCA 417 – statutory demands – risks of service by post

August

Gusdote Pty Ltd (administrator appointed) v North Queensland Development Pty Ltd (in liq) (No 5) [2012] FCA 783 – application costs against liquidators personally

September

Willmott Forests Ltd (receivers and managers appointed)(in liquidation) v Willmott Growers Group Inc and Willmott Action Group Inc [2012] VSCA 202 – disclaimer of leases by liquidator of lessors can extinguish the lessee’s proprietary interest

Commissioner of Taxation v Kassem and Secatore [2012] FCAFC 124 – third party preferences and the ATO’s practice of reallocation of payments

Jones, Saker, Weaver and Stewart (Liquidators), In the matter of Great Southern Limited (in liq)(Receivers and Managers Appointed) [2012] FCA 1072 – application for approval of funding agreement by liquidators – s 477(2B) – confidentiality and privilege

October

Commissioner of Taxation v Qantas Airways Ltd [2012] HCA 41 – GST law – what is a “taxable supply” – implications for liquidators and other external administrators

Great Southern Managers Australia Ltd (recrs & mgrs apptd)(in liq) v Clarke & Ors [2012] VSCA 207 – s 124 of the Evidence Act 2008 (Vic) – joint privilege – loss of joint client legal privilege

November

Welker v Rinehart (No 10) [2012] NSWSC 1330 – overview of trust law principles as to the removal of trustees – summary dismissal application

December

Citigroup Pty Ltd v National Australia Bank Limited [2012] NSWCA 381 – fraud – restitution – mistaken payment by bank – defence of change of position

Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 – fraud – restitution – mistaken payment by financier – defence of change of position

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