Equitable claim against a trustee in bankruptcy transferred to the Federal Court

In the light of a recent Court of Appeal decision, great care should be exercised in choosing the court in which to issue proceedings claiming an equitable interest in the property of a bankrupt. In Turner v Gorkowski [2014] VSCA 248, the Victorian Court of Appeal transferred to the Federal Court a Supreme Court proceeding in […]

Waving goodbye to waiver

It’s been almost five years since the High Court confirmed that Australian law does not recognise a standalone legal doctrine of waiver, Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570.  Waiver is really a shorthand description of the result of the doctrines of election, estoppel, variation by contract and release.  As Gummow, […]

Oppression and unit trusts – Wain v Drapac

The Supreme Court of Victoria has recently affirmed that the Corporations Act oppression provisions can be used when a company in which the oppression has occurred is a trustee company.  This has significant consequences for business relationships conducted through a unit trust structure that have turned sour.  Until the decision of Davies J in Vigliaroni […]

The law of penalties – Andrews v ANZ Bank

The High Court has held that relief against penalties is not limited to consequences imposed after a breach of contract. The equitable remedy of relief against penalties has a murky past.  As the High Court has recently observed, a proper understanding of the doctrine requires ‘more than a brief backward glance’. One controversial element of […]