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Building and Construction Security of Payment Act: Assessment of construction work and its value

The validity of an adjudication is conditional upon the adjudicator performing the statutory task of assessing the amount of construction work and its value. In the same case, judicial review in relation to the adjudicator’s alleged incorrect finding of an available reference date was pursued, but only formally in light of Lewence [2015] NSWCA 288.

Lender’s power to seek summary dismissal of a claim not straightforward in the case of alleged penalties

The Supreme Court of Victoria has partly granted an application by a financier, Equity-One, for summary dismissal of a claim brought against it by a borrower/guarantor.  The decision considers the principles applicable to summary dismissal of a claim where allegations of Anshun estoppel and the doctrine of penalties are raised.

The Lost Trust Deed

What should a trustee do if the trust deed governing the trust cannot be found? On what terms does the trustee hold the property? This short article considers these questions in the Victorian context.

Arbitration: Temporary stay of related court proceedings

In exceptional circumstances, a court exercising its inherent jurisdiction will temporarily stay its proceedings pending the hearing and determination of a related arbitration between one of the parties to the court proceedings and a third party (say, an insurer) if there are compelling case management considerations justifying that course.

Court approval of settlements in liquidations

The Supreme Court has confirmed that declarations can be made approving settlement payments and the mere fact that a liquidator has acted on incorrect advice will not preclude a settlement payment being regarded as an expense “properly incurred” for the purposes of s 556(1)(a) of the Corporations Act.

Unreasonableness and illogicality: a tale of two grounds

In recent decisions of the Federal Court (Wigney J) and the NSW Court of Appeal (Bathurst CJ), unreasonableness jurisprudence has been relied on to reject the argument that the “illogicality” ground of judicial review is solely concerned with the end result, as opposed to findings or reasoning “on the way”.