The Centro matter: ASIC v Healey [2011] FCA 717 and breach of director's duties.

The matter of Australian Securities and Investments Commission v Healey [2011] FCA 717 was a hearing in relation to the Centro group in the Federal Court of Australia before Middleton J. It concerned the scope of a director's duty to exercise reasonable care and skill in the context of understanding the financial reports of a company.

The judgment of Middleton J is an excellent read because it commences with a summary of His Honour's findings in relation to the scope of the director's duty to exercise reasonable care and skill. I have included a case summary and extracts of the judgment below.

Oswal v Burrup Holdings Limited [2011] FCA 609 - access to company records

The matter of Oswal v Burrup Holdings Limited [2011] FCA 609 (Oswal) was a hearing in the Federal Court of Australia before Barker J. The applicant was a director of two companies which had receivers appointed, and that director wanted access to company records. The receivers opposed this.

Oswal is interesting because of the depth of the Court's consideration of the right of a director to access company documents. I have included a case summary below.

Caveats - a caveatable interest must be an 'interest in land'

I noted in my previous post on this topic that the following phrase in s89(1) of the Transfer of Land Act 1958 (Vic) (TLA) determines what interests are capable of protection by a caveat: 'any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise'.

Several things are apparent from this sentence. Firstly, the interest to be protected must be an 'interest in land'. Secondly, the interest in land must arise from 'any unregistered instrument or dealing or by devolution in law or otherwise'.

This article and the discussion below concerns what is an interest in land within the meaning of s89(1).

Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 - service under s459G and 109X

The matter of Opensoft Australia Pty Limited v Miller Street Pty Limited [2011] FCA 653 (Opensoft) was an application involving a jurisdictional question before Jagot J in the Federal Court of Australia. Jagot J was asked to determine if service of an application was in accordance with s459G of the Corporations Act 2001 (Cth), which is a provision which allows a company to apply to set aside a creditor's statutory demand that has been served upon it.

By way of summary, on the last day for service of an application to set aside a demand served on it, the plaintiff company did the following (in chronological order):

• At around 4pm attempted to file the application and affidavit at the Federal Court Registry, which was closed.
• At around 4.05pm served, at the address for service in the demand (being the address of the business of the agent of the defendant) unsealed copies of the application and affidavit by attending at that address and hand delivering them.
• Filed, by way of e-lodgment with the Federal Court, the application and affidavit and obtained a sealed copy of this at around 5.20pm that day.
• Emailed the sealed copies to the email address of the agent listed in the address for service in the demand and CC'd the defendant. The email addresses were not set out in the demand and the plaintiff company obtained these from other sources.

The defendant gave evidence that the email was received by the agent that day, but the defendant never received the email which was alleged to have been CC'd to it. The Court found that service was not effected pursuant to s459G and the Court therefore could not hear the application.

I have included a case summary and discussion below.

Caveats - the basics

I am involved in a trial in respect of the removal of a caveat. In that matter the parties are debating whether or not the particular instruments executed by them give the caveator an interest in land capable of supporting a caveat.

Rather than let all of my good research go to waste (i.e. into the pile of authorities sitting on my shelving awaiting filing), I have decided to publish a series on caveats to discuss what is a caveat, what protection does the caveat afford, what is a caveatable interest, when may a caveat be registered on a title and how to remove a caveat.

This article below discusses the basics - what is a caveat.

Turner v Hidayat [2011] VSC 202 - Implied power to reinstate proceeding in VCAT

The matter of Turner & Anor v Hidayat [2011] VSC 202 (Turner) was an application for leave to appeal in the Supreme Court of Victoria before Kyrou J from a decision made in the Victorian Civil and Administrative Tribunal (VCAT). In Turner, the plaintiffs were borrowers under a loan secured by a property. The plaintiffs defaulted under the loan and applied to VCAT for relief under the Consumer Credit (Victoria) Code.

The plaintiffs failed to attend a compulsory conference listed by VCAT because their solicitor wrote the wrong date in his diary. For reasons which Kyrou J could only speculate on, VCAT listed a directions hearing after the compulsory conference (on that day) and ordered that the proceeding against the defendant be struck out with costs. The plaintiffs applied to set aside the orders made and the parties entered consent orders where the proceeding would be reinstated only if the plaintiffs vacated the property by 25 August 2010. Because of the financial difficulties being experienced by the plaintiffs, they vacated by 30 August 2010. The Tribunal confirmed the proceeding was struck out and did not reinstate the proceeding on further application.

In granting leave to appeal, Kyrou J discussed the implied power to reinstate proceedings. I have discussed this in detail below.

Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 - privilege in an investigator's report

The matter of Samenic Ltd v APM Group (Aust) Pty Ltd [2011] VSC 194 (Samenic) concerned an objection to a subpoena before Mukhtar AsJ of the Supreme Court of Victoria. I have included a summary of Samenic below.

At [1] Mukhtar AsJ set out the question being considered by the Court:

The Prothonotary has referred to the Court for hearing and determination an objection to a subpoena for production of documents. The objection involves something which is not uncommon in litigation where insurers are involved, that is, a litigant trying to get hold of an insurance investigator’s report after an insured incident has occurred. The question on this objection concerns legal advice privilege ― not litigation privilege ― under s 118 of the Evidence Act. Does this subpoena result in the disclosure of the contents of a confidential document prepared by another person (the subpoenaed party) for the dominant purpose of the lawyer providing legal advice to the client (the insurer)?