Commercial Litigation and Dispute Resolution
The litigation team at SBA Law has acted in numerous large scale and high profile matters over a number of years.
SBA has developed a reputation in commercial litigation, dispute resolution and insolvency for acting in matters that are highly complex, sophisticated and involve a large volume of documentation.
SBA has acted and continues to act in all jurisdictions regularly appearing in the Supreme Court of Victoria, Federal Court of Australia and High Court of Australia and are usually opposed to lawyers from top tier national firms.
Areas of expertise include:
- Breach of Contract
- Negligence
- Construction Disputes
- Partnership and Shareholding Disputes
- Oppression of minority Shareholders
- Insolvency
- Property Related Disputes
- Trade Practices Act Disputes
- Defamation
- Australian Securities Investments Commission investigations
- Australian Competition and Consumer Commission Investigations
- Australian Taxation Office Audits
To assist you to understand the level of expertise SBA has to offer, below is a series of case summaries in regard to matters conducted by the commercial litigation team at SBA.
We have summarised below some of the published decisions in which we have been involved and included a link to a full version of those decisions. We have also summarised some of the general areas in commercial dispute resolution in which we have developed a specialty. Obviously, for reasons of commercial sensitivity, we have not dealt with a large number of matters in which we have been involved but which have resolved on confidential commercial terms.
ALLISON & ORS V BDO
In this matter our firm acted on behalf of some exiting partners in the accounting firm, BDO.
The proceeding involved complex issues of employee restraints, repudiation of a suite of partnership agreements, the imposition of notice periods, liquidated damages and other issues.
During the course of the proceeding two interim injunctions were sought and the matter ultimately proceeded to eleven days of trial before it was successfully settled.
ASIC V SCOTT & ORS/CENTRO CLASS ACTIONS
Our firm has been involved in both:
(a) the civil penalty proceeding initiated by ASIC against the former directors and officers of Centro in which our firm acted for the previous CFO. The proceeding involved highly publicised and significant allegations of breaches of directors’ duties arising from the collapse of Centro. The trial proceeded for 5-6 weeks; and
(b) the multiple class actions initiated by two groups of shareholders against the Centro entities who joined PriceWaterhouse Coopers to the proceeding who then, in turn, joined each of the directors and officers. The proceeding sought compensation of tens of millions of dollars and is set to proceed for hearing over a ten week period.
YEO & RAMBALDI THE MOORA FARMING PTY LTD & ORS
In this matter, our firm acts for the liquidator of Rennie Produce (Aust) Pty Ltd (In Liquidation) who is pursuing a series of companies and individuals for various claims including transactions designed to avoid or defeat creditors, uncommercial transactions and so on.
The claim involves allegations of tens of millions of dollars of tax avoidance and is also the subject of criminal investigation as part of Operation Wickenby. In this proceeding our firm obtained a freezing order in respect of approximately $42,000,000 worth of assets.
JORDANLANE PTY LTD V KIMBERLEY JANE ELIZABETH KITCHING & ORS
In this matter our firm acted on behalf of Jordanlane Pty Ltd who was owed approximately $3 million by the Defendants.
By the time the matter came to trial the First Defendant had proceeded through bankruptcy (which was subsequently annulled) and the Second Defendant had already been made bankrupt. Accordingly, the trial proceeded against the Third Defendant, Mr William Landeryou.
The trial required the Supreme Court to determine and interpret the meaning of a section of the Corporations Act involving the transfer of the beneficial interest in shares of a company in liquidation. Our client was ultimately successful and obtained judgment.
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2008/426.html?query=title(Jordanlane)
GESS MICHELE RAMBALDI & ANDREW REGINALD YEO (AS JOINT AND SEVERAL TRUSTEES OF THE PROPERTY OF PHILIP CHARLES WEEDEN, A BANKRUPT) V PHILIP CHARLES WEEDEN & ANOR
In this proceeding our firm acted on behalf of the trustees in bankruptcy who sought to claw back into the bankrupt estate shares transferred by the bankrupt to his mother immediately prior to his bankruptcy.
An interesting and complex trial and determination emerged whereby the Federal Court was called upon to determine the market value of the shares transferred by the bankrupt. In essence, the Respondents alleged that the shares were worth only a nominal value given that, while the companies in which the shares were held were asset rich, the directors had no plans to realise those assets, liquidate the companies or declare dividends. Conversely, our clients contended that the proper method of valuation to determine the market value was to determine the gross underlying value of the assets and then impose a discount on that valuation for the risk and cost that a third party may apprehend were it to purchase the shares.
Ultimately, our clients were successful in the proceeding and orders were made to transfer the shares back into the bankrupt estate, with an order for the costs of the proceeding in favour of our clients.
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2008/1597.html?query=title(Rambaldi)
LANDROW PROPERTIES PTY LTD & HEENI PTY LTD -v- COMMISSIONER OF STATE REVENUE
In this proceeding our firm acted on behalf of Landrow Properties Pty Ltd and Heeni Pty Ltd (“Heeni“), the Plaintiffs, who sought restitution from the Commissioner of State Revenue of an amount of $110,609 paid to the Commissioner as duty under a mistake of law.
Heeni was the trustee of a number of family trusts. Heeni, in its capacity as trustee of one of the family trusts, transferred 20 units in a related unit trust which owned property, to itself in its capacity as trustee of another family trust. The Commissioner assessed this transaction as dutiable under the “land rich provisions” in the Duties Act 2000. The Commissioner’s assessment was based on the contention that Heeni held a beneficial interest in the units at a point in time in the transaction and was therefore subject to land rich duty.
The Plaintiffs brought this proceeding upon the Commissioner’s refusal to refund the duty paid. In order for the Commissioner to show that the amount of duty paid was properly owing, he needed to prove that Heeni had a “beneficial” entitlement to the units being transferred at some point of time in the transaction.
The Court held that the legislature intended for the meaning of “beneficially”, as used in the Duties Act 2000, to import the well-recognised concept of a person obtaining the relevant benefit for himself or itself and not for the benefit of others. Accordingly, as Heeni had only ever held the units as a trustee, it could not be said to have obtained a beneficial interest in the units. Ultimately our clients were successful and the Court ordered that the Commissioner repay the sum claimed, together with interest and costs on an indemnity basis from the date of an offer of compromise.
The Commissioner appealed the decision to the Court of Appeal as it was a landmark decision which would stand as a matter of principle in respect of other taxpayers. The result of the appeal was that our client’s decision was upheld on all points and the Commissioner was ordered to pay our client’s costs of the appeal. The Commissioner has not sought special leave for the matter to be appealed to the High Court of Australia.
www.austlii.edu.au/au/cases/vic/VSC/2008/590.html
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION V PRIMELIFE CORPORATION LIMITED
(2007) 25 ACLC 1700 [2007] FCA 1874
Our firm acted in this Federal Court proceeding for the liquidator of GDK Financial Solutions Pty Ltd (In Liquidation), a company which had been wound up in insolvency. GDK did not carry on any business in its own right and all its activities were carried out in its capacity as trustee of the trust. The trust was involved in an operation what was subsequently found to be an unregistered managed investment scheme. Although GDK was no longer trustee of the trust after May 2005 it continued, by its participation in the proceeding brought by ASIC to wind up the unregistered managed investment scheme, to act to preserve the assets of the trust and preserve and represent the interest of the investor partners in the partnerships it managed. As a defendant in the proceeding GDK was acting not to protect any assets in respect of which it had a beneficial ownership, but rather to protect the assets and interests of the trust.
Following the winding up of GDK the liquidator continued to preserve trust assets and generally acted in the best interests of the trust. The key question before the Court was whether the liquidator was entitled to draw upon the assets of the trust to recover his fees and expenses despite having knowledge that GDK was no longer the trustee of the trust. In the ordinary course a liquidator is entitled to be paid his costs and expenses incurred in the course of the liquidation and the winding up and his remuneration for acting as liquidator out of the assets and funds of the company which are received and held by him.
The Court found that in these circumstances the liquidator was entitled to fees, expenses and remuneration incurred in securing and preserving trust assets.
www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/federal_ct/2007/1874.html