Where seeking to recover land on the basis of a constructive trust arising from proprietary estoppel, when does that constructive trust arise? Does it arise when a court makes a declaration to its effect, or when the relevant cause of action accrues? And when should the court consider a lesser remedy instead of declaring a trust?
The Full Court of the Federal Court recently clarified the way in which the “side by side comparison” of trade marks is to be carried out in order to determine whether the two marks are substantially identical.
The clarification occurred in the context of an opposition to the registration of a trade mark pursuant to s 58 of the Trade Marks Act 1995 (Cth) (TMA). However, the Full Court’s clarification will have broader relevance as the question of whether a mark is substantially identical to another arises in several other sections of the TMA (for example sections 44, 120 and 122).
The WADA Code prohibits athletes from associating with others who are serving a doping ban, or otherwise been sanctioned for conduct that would constitute a violation under the Code.
Do we now live in an age where we will find athletes banned from sport due to who they know, rather than what they do?
This recent decision illustrates how a broad approach to the slip rule allowed the bank to amend its order for possession, despite the same error appearing in the description of the security property on a notice sent under the mortgage, and also in the bank’s statement of claim.
A Federal Court class action, brought on behalf of Indonesian seaweed-farmers, nudges the outer bounds of the Australian class action regime – both geographically and temporally.
Section 1305 of the Corporations Act is an important tool for practitioners in debt and loan recovery. The section provides that books and records of a company are (1) admissible, and (2) prima facie proof of any matter recorded therein (eg a loan). However, a recent NSW case is a reminder the presumption is rebuttable.
Winding up: perfected security interests registered on the PPSR and funds held post-DOCA termination
Funds remaining in a company after a DOCA is terminated may still constitute collateral for a perfected security interest registered on the PPSR if the security deed is drafted in appropriate terms.
In this recent decision the Court of Appeal considers builders’ duties under domestic building contracts to an undisclosed principal and owner, and the parties’ ability to limit the scope of the statutory warranties under the Domestic Building Contracts Act 1995 (Vic).
Victorian cases establish that a statutory payment claim is not invalid by reason of it being served before a reference date. These authorities are likely to be revisited in the light of recent decisions of the High Court of Australia and the New South Wales Court of Appeal.
A recent decision by Vickery J addresses the practice of “piggybacking” by a plaintiff in the proportionate liability context. The decision means that a plaintiff bringing a claim against a concurrent wrongdoer joined by the defendant must properly plead a cause of action against them; it may be insufficient simply to make reference to the first defendant’s pleading.
The Full Court of the Federal Court of Australia adopts (guardedly) the ‘prima facie’ approach standard of review to applications for stay of court proceedings brought in the face of an arbitration agreement, bringing Australian jurisprudence in line with that of Singapore and Hong Kong.
The Full Federal Court held that an employee owed fiduciary obligations not only to his employer (an established category of fiduciary relationship), but also to a subsidiary of his employer. The Court considered when fiduciary obligations will be found outside the established categories.
Arbitration – scope of arbitration agreement – whether a dispute as to an alleged breach of trust constitutes a “matter” within the scope of an arbitration agreement – proper approach to construction of arbitration agreement – whether the arbitration agreement incapable of being performed – application for stay of proceedings under s 8 of Commercial Arbitration Act 2012 (WA)
Introduction The Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 (Cth) was finally passed by the Senate on 12 September 2017. The Bill will insert provisions into the Corporations Act 2001 (Cth) which will:...
Privacy law reform and the new mandatory reporting regime for data breaches: how will it affect you?
The privacy and data protection regulatory landscape in Australia has seen further recent revision with the formal assent of the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) earlier this year. The new law will become operative from 22 February 2018.