Chief Disruption Officer Pty Ltd as Trustee for the McDonald Family Trust v Michel, in the matter of Laava ID Pty Ltd (No 3) [2022] FCA 1302

CORPORATIONS – company formed by three Founders to develop and exploit a product – Shareholders’ Deed entered into between the Founders and the associated Founder Shareholders – breakdown of relationship between two of the Founders – whether the relationship between the Founders and their associated Founder Shareholders was governed by an understanding that their respective shareholdings would remain equal and which survived entry into the Shareholders’ Deed – held no such understanding established – whether there was oppression of the second plaintiff because of: (1) conduct alleged to have forced out the first plaintiff as CEO and a director of the company – held no oppression of the second plaintiff; (2) the issue and proposed issue of shares and options after the first plaintiff ceased to be involved in the company – held oppression established for some but not all of the impugned conduct

David Rayment SC and Michael Collins appeared for the First, Second, Third and Fourth Defendants.

Reasons for the decision can be found here.

Chief Disruption Officer Pty Ltd as Trustee for the McDonald Family Trust v Michel, in the matter of Laava ID Pty Ltd [2022] FCA 148

PRACTICE AND PROCEDURE – Application for an order under rule 30.01 of the Federal Court Rules 2011 (Cth) that certain questions be determined separately – failure to make application before the trial date was fixed on an expedited basis – application for dispensation – principles relevant to exercise of the Court’s discretion – overarching purpose of civil practice and procedure – separate questions not ordered

PRACTICE AND PROCEDURE – Applications for security for costs against a trustee company – form of proposed security – whether proposed undertakings are an adequate form of security – whether a company the subject of an oppression action is entitled to security for costs – applications granted with security in the form of payment into Court or an irrevocable bank guarantee

PRACTICE AND PROCEDURE – Costs – whether a company the subject of an oppression action is entitled to payment of costs thrown away on amendment of pleadings – costs order made

David Rayment and Michael Collins appeared for the First, Second, Third and Fourth Defendants.

Reasons for the decision can be found here.

In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

PRACTICE AND PROCEDURE – application for leave to amend statement of claim – no issue of principle

CORPORATIONS – statutory derivative action – whether leave should be granted to allow applicant to bring proceedings on behalf of the two companies – where applicant is shareholder of each company – where applicant is also a beneficiary of the trust for which one of the companies acts as trustee – where applicant may also bring proceedings in capacity as beneficiary of the trust – whether probable that companies will bring proceedings themselves – whether applicant acting in good faith in seeking to bring proceedings – whether in the best interests of each company that leave be granted – whether proposed proceedings involve a serious question to be tried – where oppression under the Corporations Act 2001 (Cth), s 232 pleaded but means of redress under s 233 may not be available as assets of one company held on trust

David Rayment appeared for the Plaintiffs.

Reasons for the decision can be found here.

Scrivener v Cappello [2021] NSWCA 330

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent.

PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership.

David Rayment appeared for the First Respondent and Second Respondent.

Reasons for the decision can be found here.

Alexakis v Wan [2021] NSWCA 172

CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged.

David Rayment and Andrew Smorchevsky represented the Respondents.

Reasons for the decision can be found here.

Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club [2021] NSWCA 154

CONTRACT – construction – design and construct contract – contractor claimed additional payment for works required pursuant to development consent – whether works were “Excluded Works” – significance of definition commencing “Notwithstanding any other clause” – significance of grammatical meaning of clause – clause required to be read as a whole, harmoniously with other provisions in contract.

David Rayment and Andrew Smorchevsky represented the Respondent.

Reasons for the decision can be found here.

Alexakis v Wan [2021] NSWSC 367

LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month”.

EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW).

David Rayment represented the Defendants in the matter.

Reasons for the decision can be found here.

Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168

JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation

PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted

David Pritchard SC and David Rayment represented the Plaintiffs.

Reasons for the decision can be found here.

Cappello & Anor v Scrivener & Anor [2020] NSWSC 1748

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites.

CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement.

David Pritchard SC and David Rayment represented the Plaintiffs.

Reasons for the decision can be found here.

JABBCORP (NSW) PTY LIMITED V STRATHFIELD GOLF CLUB [2020] NSWSC 1317

CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances.

David Rayment represented the Defendant.

Reasons for the decision can be found here.

Glenfyne International Holding Limited v Glenfyne Farms International AU Pty Ltd (in liq); Glenfyne International Limited v GI Commercial Pty Ltd (in liq) [2019] NSWCA 304

From the NSW Court of Appeal:

CORPORATIONS – Insolvency – second meeting of creditors resolves to place company into liquidation – substantial creditors’ motion for appointment of liquidator fails – former administrator as person presiding at meeting exercises casting vote against resolution – proper characterisation of resolution – whether or not resolution to appoint liquidator was a resolution to remove an external administrator within the meaning of s 75-115 of Insolvency Practice Rules – whether Court should have ordered that proposed resolution to appoint liquidators should have been taken to have been passed at meeting within meaning of s 75-43(4)(a) of the Insolvency Practice Schedule – relevant considerations.

CORPORATIONS – Insolvency – company in administration – s 90-15 of the Insolvency Practice Schedule – whether a source of power to order that resolution to appoint liquidators be ordered to have been taken to have been passed at creditors’ meeting – whether general power to make orders or only engaged where failure or default on part of administrator.

David Rayment represented the appellants.

The reasons for the decision can be found here.

Print Mail Logistics Limited v Warratah Investments Pty Ltd [2018] FCA 1618

CORPORATIONS – application to set aside a statutory demand or in the alternative for a permanent injunction – where creditor has refused to assign securities – whether the affidavit accompanying the statutory demand met the requirements of s 459E(3) of the Corporations Act 2001 (Cth) (Act) – whether creditor is intentionally acting to impair securities that ought to be available for a guarantor or an incoming financier upon payment of the principal debt – whether the Court should set aside the demand on the basis of s 459H(1) or s 459J(1)(b) of the Act or grant a permanent injunction – application allowed.

David Rayment represented the Plaintiff.

Reasons for the decision can be found here.

Wondal v Inspector-General in Bankruptcy [2018] FCA 1278

From the Federal Court of Australian

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on questions of law – where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees – whether Tribunal denied the applicant procedural fairness – whether there was no evidence to support findings made by the Tribunal – whether Tribunal failed to consider applicant’s submissions – whether Tribunal’s reasons were inadequate.

David Rayment represented the Respondent.

Reasons for judgment can be found here.

Luo v Windy Hills Australian Game Meats Pty Ltd (No 2) [2018] NSWSC 1139 (24 July 2018)

PRACTICE & PROCEDURE – COSTS – Security for costs – individual plaintiff ordinarily resident outside Australia – corporate defendant admittedly unable to meet a costs order – whether security for costs should be refused because of the merits of the plaintiffs’ claim – relevance of defendants’ failure to comply with undertaking given to the Court – whether ordering security will stultify proceedings – other factors said to be relevant to exercise of discretion.

David Rayment represented the Plaintiffs/Respondents.

Reasons for the decision can be found here.

Stojic v Stojic [2018] NSWCA 28

In the New South Wales Court of Appeal:

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

David Smallbone appeared with David Rayment for the Appellant.

Sydney Tools Pty Ltd v Robert Bosch (Australia) Pty Ltd [2017] NSWSC 1709

From the Supreme Court of New South Wales:

CONTRACTS - existence of a contract - “postal rule” - whether Trading Agreement contained obligation to supply absent acceptance of an order - - HELD: no executed contract - no obligation to supply - PRACTICE AND PROCEDURE - Practice Notice SC Eq 3 para 50 - “stop-watch” method of trial

David Rayment appeared for the Defendant.

Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 28

ADMINISTRATIVE LAW – whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires s 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrument commenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth).

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence.

CONSTITUTIONAL LAW – separation of judicial and executive powers – where Residential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of the Constitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth).

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession.

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence.

David Rayment represented the Respondent.

Reasons for the decision can be found here.

Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329

From the Federal Court of Australia:

PRACTICE AND PROCEDURE – application for a stay pending application for special leave to appeal to High Court – application dismissed, with costs

David Rayment appeared for the Commonwealth.

Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 30

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 10AA(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to make provision for and in relation to all or any of specified matters in respect of a Commonwealth tenancy dispute – whether a provision of the Instrumentcommenced before the day the Instrument was registered for the purposes of s 12 of the Legislation Act 2003 (Cth)

APPEAL AND NEW TRIAL – appeal from Federal Circuit Court of Australia – claimed errors in fact-finding by primary judge – claimed errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether error by the primary judge in suspending the order for vacant possession – whether to grant application that, in an appeal, the Court receive further evidence

CONSTITUTIONAL LAW– separation of judicial and executive powers – whereResidential Tenancies Act 2010 (NSW) conferring power on State Tribunal was made the applicable law for Commonwealth tenancy disputes in the Federal Circuit Court of Australia involving land in New South Wales – whether acquisition of property other than on just terms – whether there was a “matter” within the meaning of Ch III of theConstitution – whether it was beyond the legislative power of the Parliament to make s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

LANDLORD AND TENANT – application by Commonwealth as lessor to the Federal Circuit Court of Australia for a termination order for a residential tenancy agreement where the tenant had been in continual possession of the same residential premises for a period of 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

PRACTICE AND PROCEDURE – application for an adjournment – whether leave should be granted to amend grounds of appeal – whether to grant application that, in an appeal, the Court receive further evidence

David Rayment appeared for the Commonwealth.

Menzies v Paccar Financial Pty Ltd [2016] FCA 400 (21 April 2016)

PRACTICE AND PROCEDURE – whether proceeding should be summarily dismissed – whether applicants precluded by Anshunestoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success.

David Rayment represented the Respondents.

Reasons for the decision can be found here.