The duties that arise out of a fiduciary relationship, such as those owed by a trustee to a beneficiary, are some of the most stringent the law imposes. The recent case of Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd  demonstrates the serious repercussions for a third party who, while not a fiduciary themselves, knowingly assists a fiduciary in their dishonest and fraudulent conduct.
The case demonstrates that the Court is willing to order such a third party to account for their profits, including potential future profits for an unrestricted time frame.
Non-compliance with a statutory demand is the most common way to prove insolvency.
The recent decision of the Supreme Court of Victoria in A G Coombs Pty Ltd v M & V Consultants Pty Ltd (in liq)  VSC 468 illustrates the issues faced by the recipient of a statutory demand who disputed the debt on which the demand was based. While it was argued that they were unquestionably solvent, the recipient failed to make an application to have the statutory demand set aside within the 21-day time limit.
MST Lawyers’ previous updates on the Unfair Contract Terms provisions in the Australian Consumer Law highlight the Australian Competition & Consumer Commission’s focus on the UCT laws.
A recent speech by Mr Rod Sims, chair of the ACCC, indicates there may be a further focus and crackdown in relation to the UCT laws. Small businesses and financial services providers will need to be increasingly vigilant in ensuring their standard form contract do not contain unfair terms.