News

VCAT Clarification in Victoria’s Shifting Landscape Of Retail And Commercial Leasing

Landlords and tenants across Victoria should take note of VCAT’s important decision handed down in July 2019 matter of Phillips v Abel [2019] VCAT 1031. This decision is an important landmark in the shifting landscape of retail and commercial leasing in Victoria.

Dealing With Unfair Contract Terms

Having just read an article about draft legislation to extend the unfair contract term regime to insurance contracts, I was reminded that laws relating to unfair contract terms in the Australian Consumer Law have been around since 2010 in respect of standard form consumer contracts and since November 2016 in respect of standard form small business contracts. Despite these laws applying to standard form small business contracts for nearly 3 years, there are still much confusion in this area of law.

Applying A Wider Restitutionary Basis To Equitable Liens Created Under The Universal Distributing Principle

In the recent decision of Re Australia’s Residential Builder Pty Ltd (in liq) [2019] VSC 115, the Victorian Supreme Court considered and extended the Universal Distributing equitable principle. This principle states that a secured creditor should not have the benefit of a fund created by a liquidator’s efforts during winding up, without the liquidator being reimbursed for their associated time and expense. On these facts, the Court was willing to extend this principle beyond the direct liquidator to a third-party liquidator.

What To Do With An Insolvent Corporate Trustee?

In the recent decision of Cremin, in the matter of Brimson Pty Ltd (in Liq) [2019] FCA 1023, the Federal Court provides useful guidance of what a liquidator should do when faced with an insolvent corporate trustee with a right of indemnity over trust assets. In situations where the corporate trustee ceases to be the trustee upon becoming insolvent, Brimson highlights the need to approach the Court before the liquidator is able to realise the assets of the trust to meet the company’s liabilities. The decision is one of the first since the handing down of the High Court’s findings in Carter Holt Harvey (Amerind) concerning the nature of the right of exoneration and the limit of what it can be used to indemnify.