This is the commercial law blog (or 'blawg') of Andrew Downie of the Victorian Bar. The posts include updates, case-notes, topics of interest, legal affairs and practice management.
Friday, July 29, 2011
Caveats - how does someone remove a caveat (part 2)
Wednesday, July 27, 2011
Owners corporations - part 1: what do they do?
This is the first part of a short series on owners corporations. The series is intended to give the basics of owners corporations, discuss what their duties are and what the consequences are if the duties are breached.
The discussion below is a general discussion introducing owners corporations, what they do and how they delegate their functions.
Monday, July 25, 2011
VCAT and claims for lost time
I have included below a discussion of a claim for lost time in VCAT.
Sunday, July 24, 2011
Cadel wins the Tour de France 2011
For those of you that don't know, I'm a massive cycling fan. A lot of the world's cycling races take up my nights and mornings, including the Tour de France.
Cadel Evans is the first Australian to win the Tour. By winning the time trial on the 20th stage of the 2011 Tour, Cadel has won the race. There is one day to go, however by convention the GC leaders (that is, the riders who compete for the yellow jersey which represents the overall fastest time) never compete against each other on the last day.
In terms of his history in the Tour, Cadel has come second twice (2007, 2008) fourth once (2006) and eighth once (2005). He won the World Championships in 2009 in Mendrisio, Switzerland, and he has followed up his successful career by taking the biggest race in the world.
Well done Cadel!
Thursday, July 21, 2011
Zhen v Mo & Ors  VSC 300 - freezing orders
I have included a discussion of freezing orders and the matter of Zhen v Mo & Ors  VSC 300 below.
Monday, July 18, 2011
Caveats - how does someone remove a caveat (part 1)
A person may seek to have a caveat removed by several means, including (by way of summary):
- by the Registrar issuing a notice requesting the caveator either to give notice abandoning the claim or issuing proceedings to substantiate the claim (s89A TLA);
- by a person lodging a dealing on the title and 30 days have passed since the registrar gave notice to the caveator that the caveat will lapse (s90(1) TLA); or
- By application to the Court to have the caveat removed (s90(3) TLA).
Wednesday, July 13, 2011
Caveats - accuracy of information and amendment
I have included a link here to the DPI approved caveat form.
The section which is headed 'Estate or Interest claimed' requires a caveator to state the interest which the caveator is seeking to protect. The section which is headed 'Grounds of claim' requires a caveator to state how the estate or interest claimed arises. These sections attract a lot of attention in litigation because a failure to get these details right could render the caveat defective and lead to a Court order that it be removed.
A Court has a discretion to order the removal of an unintelligible caveat. The Court also has a discretion to amend an unintelligible caveat so that it reflects what is actually claimed by the caveator. So how does a Court decide whether to remove or amend a caveat that is unintelligible? I have discussed these issues below in further detail.
Friday, July 8, 2011
Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors (No 4)  VSC 269 - privilege and improperly obtained evidence
The defendants (Amcor) sought to use the letter of advice in cross examination and objection was made to that use by the plaintiff under s118 of the Evidence Act 2008 (Vic) (the Evidence Act) and s138 of the Evidence Act. Amcor said that it could use the letter by reason of the plaintiff acting inconsistently with the maintenance of a claim of privilege by the following conduct:
- The letter of advice was received by two third parties.
- The letter of advice was listed in a supplementary affidavit of documents and the plaintiff did not object to it being listed in that document.
- The letter of advice was referred to in the opening address of Amcor's senior counsel and the plaintiff did not object to it being referred to.
Tuesday, July 5, 2011
Berengo v Amaca Pty Ltd & Anor  VSC 276 - pre-judgment interest rates
I have included a discussion and extracts of this matter below.
Friday, July 1, 2011
Caveats - which interests in land are caveatable interests?
The interest in land must arise from 'any unregistered instrument or dealing or by devolution in law or otherwise'. In Victoria, there is a divergence of views on what interest in land is afforded protection by a caveat.
I have discussed the divergence of views below.