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So bad it’s good: dodgy drafting gets the job done

In this recent decision, the landlord got the benefit of a dubiously worded outgoings clause. The High Court gave full effect to the parties’ commercial intent to hold that commercial common sense dictated that the tenant would be liable for all outgoings under a long term lease.

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12

What a difference a Day makes: the High Court on disqualifying pecuniary interests of parliamentarians

In Re Day [No 2] [2017] HCA 14, the High Court determined that Mr Bob Day had an indirect pecuniary interest in an agreement with the Commonwealth, and was thereby disqualified from being chosen or sitting as a senator pursuant to s 44(v) of the Constitution. The Court’s decision substantially revised the ambit of that section.

Re Day [No 2] [2017] HCA 14

Court of Appeal clarifies lead plaintiffs’ authority to settle class actions

The Victorian Court of Appeal has ruled that a settlement deed containing releases and acknowledgements beyond the scope of common issues in the Great Southern class action is binding upon group members, despite the High Court’s holding that representative plaintiffs and group members are not privies in relation to uncommon issues.

Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51 

Quantum meruit or damages?

VCAT has ordered the owners to pay a builder $660,526.41 by way of a quantum meruit following the termination of a building contract; a sum which was “considerably more” than the builder might have recovered in a damages claim under the contract.

Paterson Constructions Pty Ltd v Mann [2016] VCAT 2100

Lit up! E-retailers of e-cigarettes fined for misleading conduct

The Federal Court found that three online retailers and their directors had engaged in “serious” contraventions of the Australian Consumer Law for misleading Australian consumers as to the health benefits of e-cigarettes in three separate decisions that emphasise the importance of cooperation as a mitigating factor.

Australian Competition and Consumer Commission v The Joystick Company Pty Ltd, Australian Competition and Consumer Commission v Social-Lites Pty Ltd, and Australian Competition and Consumer Commission v Burden [2017] FCA 397, [2017] FCA 398, and [2017] FCA 399

The Harman Obligation: Policy, Procedure and Punishment

Paul Hayes will be presenting a CPD seminar on Tuesday, 20 June 2017 at 5.15pm in the McPhee Room on level 1 of Owen Dixon East. The seminar is entitled: “The Harman Obligation: Policy, Procedure and Punishment”. Further details can be obtained from the Bar Office.

Contract: Amendment or replacement?

Parties to a contract enter into a further contract by which they vary the original contract terms. Is the effect of the second contract to bring the first contract to an end and to replace it with the second, or to leave the first contract standing, subject to alteration?

Balanced Securities Limited v Dumayne Property Group Pty Ltd [2017] VSCA 61