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Guarantees and the Code of Banking Practice – compliance with the Banking Code required to enforce a guarantee

Case Note by Kieran Hickie and Andrew Kirby. The recent decision of the Supreme Court of Victoria in National Australia Bank Ltd v Rice [2015] VSC 10 highlights that care and attention must be taken by banks and lenders to ensure compliance with the Banking Code is taken in order for guarantors to understand their rights and liabilities under a guarantee. Non-compliance with the requirements of the Banking Code can result in guarantees not being enforceable.

Validity of international sports arbitration awards rendered by the Court of Arbitration for Sport

Case Note by Paul Czarnota. The German case of Pechstein v ISU has thrown some doubt over the validity and enforceability of arbitral awards rendered by the Court of Arbitration for Sport, the arbitral tribunal established to determine international sporting disputes. Pechstein may provide a future avenue for challenging sports arbitral awards globally, and in Australia.

High Court: Civil forfeiture proceedings may need to await the finalisation of criminal proceedings

Case Note by Simona Gory. Civil forfeiture of asset proceedings may need to be stayed pending finalisation of the relevant criminal proceedings, at least in circumstances where the offences and circumstances relied on in the forfeiture proceeding are substantively identical to the criminal proceedings and there is no prejudice to the Commissioner arising from a delay to the forfeiture proceedings.

The aftermath of Timbercorp

Article by Cam Truong. A short excursion into the aftermath of the Timbercorp Group collapse that included an unsuccessful grower class action and appeal, and currently hundreds of proceedings being pursued against and resisted by, individual growers. Looming test cases.

Application to restrain recourse to security

Case Note by David McAndrew. The Court of Appeal has found that interlocutory applications to restrain recourse to performance bonds generally fall into a special category when it comes to whether the Court should exercise its discretion to decide a question of law/construe the recourse provision. A mere assertion of reputational damage in the event of recourse will not suffice to demonstrate likelihood of irreparable harm.

Civil leave to appeal requirement considered

Submission by Helen Tiplady
Kennedy v Shire of Campaspe [2015] VSCA 47
In this recent decision, the Court of Appeal grappled, for the first time, with the test for the grant of leave for an appeal under the new civil appeals regime.

Domestic Building Contracts Act 1995 (Vic) applies to multi-apartment developments: Burbank Australia Pty Ltd v Owners Corporation [2015] VSC 160, 29 April 2015, McDonald J.

The Supreme Court of Victoria was required to consider the application of the Domestic Building Contracts Act 1995 (Vic) to multi-apartment developments. McDonald J held that, subject to the nature of the works falling within the definition of “domestic building work”, the Act applies to multi-apartment developments and to developers of such developments.

The penalty doctrine and delay to practical completion caused by trivial events: Grocon Constructors (Qld) Pty Ltd v Juniper Developer No. 2 Pty Ltd & Anor [2015] QSC 102, 23 April 2015, P. Lyons J

A modified AS4300-1995 contract defined practical completion to include an exhaustive list of both significant and trivial items of work. The builder argued that because the failure to attend to trivial items of work could trigger the liquidated damages clause, the clause was penal. The Queensland Supreme Court disagreed.