PROFILE

Full Name: Anthony P Rodbard-Bean
Email: rodbard@vicbar.com.au
Phone:+61 3 9225 8193
Secretary:+61 3 9225 8032
Chambers: Aickin Chambers
Room: 3205
Date of Admission: 3 Mar 1987
Called to the Bar: 30 Nov 1989
Qualifications: B.Ec; LL.B; LL.M
Previous Occupation: Anthony was an Articled Clerk at Maddock, Lonie and Chisholm [1986] and was Associate to the Honourable Justice Murray [1987 - 1988] and the Honourable Justice Cummins [1988 - 1989] of the Supreme Court of Victoria.

Profile

PRACTICE PARTICULARS 

Anthony practises in commercial litigation in the Supreme Court and the Federal Court and advises on substantial commercial matters including contractual disputes, the Competition and Consumer Act, the Corporations Act, insolvency, intellectual property, probate, property law, private international law, trusts and equity.

AREAS OF PRACTICE; SELECT APPEARANCE NOTES

Victorian Supreme Court 

Thompson v National Australia Bank Ltd and Geminder,  
VSC Commercial Court (Elliot J current) - breach of settlement agreement by bank, loss of option agreement with tenant, representations of good faith, estoppel, valuation of loss of option, breach of mortgagee's duty in the exercise of power of sale.

ASADA v 34 Players and One Support Person (No 2) [2015] VSC 14 (Croft J) - application for leave to issue subpoena under Commercial Arbitration Act 2011, whether applicant should pay the costs of leave hearing, basis upon which costs so ordered should be calculated, Supreme Court (General Civil Procedure) Rules 2005, O 42.11, Supreme Court (Chapter II Arbitration Amendment) Rules 2014, r 9.14(8).

ASADA v 34 Players and One Support Person [2014] VSC 635 (Croft J) -  application for subpoena requiring attendance for examination before AFL Anti-Doping Tribunal, Commercial Arbitration Act, s 27A – Supreme Court (Chapter II Arbitration Amendment) Rules 2014, r 9.14, Supreme Court (General Civil Procedure) Rules 2005, O 42, characteristics of an arbitration, whether AFL Anti-Doping Tribunal is an arbitral tribunal,  AFL Player Rules, rr 4.1, 4.9, 42.1, 42.3, 42.4, 42.7, whether AFL Anti-Doping Tribunal proceedings comprise domestic arbitration, whether AFL Anti-Doping Tribunal proceedings comprise commercial arbitration.

In the matter of the Randello Family Trust [2014] VSC CED [(Hargrave J) - application under ss 63, 63A of Trustee Act 1958, lost trust deed, variation of trust deed, Court’s inherent jurisdiction as to the administration of trusts.

Ferguson v Paul and Anor [2014] VSC CED (Dixon J) - terms contract for the sale of land, misleading and deceptive conduct, final relief in the form of permanent injunctions.

Re Annesley Plant Hire Pty Ltd (No 2) [2014] VSC 350 (Robson J) - application for leave to file a second amended counter claim, whether pleading discloses a reasonable cause of action, whether sufficient particulars provided of alleged knowledge of defendants regarding conspiracy.

Re Annesley Plant Hire Pty Ltd [2014] VSC 56 (Robson J) – whether self-executing order enlivened, whether allegation of conspiracy properly particularised.

Thompson v National Australia Bank Ltd [2013] VSC 400 (Elliot J) - interlocutory injunction, applicable legal principles, mortgagee in possession, alleged compromise to sell to specified third party, option to buy back from specified proposed purchaser, proposed purchaser now denies agreement to purchase, whether serious question to be tried, balance of convenience, whether damages an adequate remedy, application to join proposed purchaser as second defendant.

Primebroker Securities Ltd v Lomas [2013] VSC 223 (Judd J) - transfer into Commercial Court, summons issued prior to transfer, applications for summary judgment.

Primebroker Securities Ltd (Receivers and Managers Appointed ) v Lomas ATF the Center Management Trust VSC Commercial Court (Judd J) - margin lending agreement, agreement to develop and construct childcare centres for ABC Learning Centres Ltd, breach of trust, breach of fiduciary  duties, Barnes v Addy claim.

954 Centre Road Pty Ltd v Velickov and Ors VSC CED [2013] VSC (Pagone J) - injunction and freezing orders, breach of trust, breach of directors duties, Barnes v Addy claims, removal of caveats under s90(3) of Transfer of Land Act, claim for compensation.

Crucis Pty Ltd v Aitken VSC CED - responsible lending under National Consumer Credit Protection Act 2009 (Cth), mortgage, indefeasibility of title, in personam claims against mortgagee, non est factum, equitable relief, unconscionable conduct in equity and under the Australian Securities and Investments Commission Act 2001 (Cth).

Jones v Cadence People Pty Ltd VSC Corporations List [2012] (Robson J) - application to appoint provisional liquidator, freezing orders.

LSP Communications Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v CBB Holdings Pty Ltd and Ors  VSC Commercial Court (Sifris J) - sale of shares, share mortgage, breach of directors' statutory and fiduciary duties, knowing assistance in breach of fiduciary duties, proportionate liability between concurrent wrongdoers.

Cantarella Bros Pty Ltd v SJS Distributions Systems Inc  
VSC CLD - letter of Request from the Supreme Court of New York, Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, evidence for foreign courts in a civil matter, Evidence (Miscellaneous Provisions) Act 1958, confidentiality regime.

Cossari Smith Pty Ltd v State of Victoria and Ors
VSC CLD - interlocutory injunction, night club, validity of search warrants, trespass of goods and premises, search warrant issued under Liquor Control Reform Act, interference with trade and business by unlawful means, intentional and unjustifiable interference with contractual relations, misfeasance in public office, damages.

Torney & Ors v Shalders & Anor
[2009] VSC 268 (Mandie J) - Administration and Probate Act, family provision, application for further provision by three daughters of deceased, residuary estate including substantial farm properties left to son of deceased.

Eisenberg and Ors v Eisenberg, 2009, (Ashley JA, Hargrave J, Evans AsJ) – defamation, ex parte application for injunction, search order under SCR 37B, privilege against self-incrimination, waiver of privilege (reported [2008] VSC 322), substantial award of damages under the Defamation Act 2005.

Eastern Health v MIA Victoria Ltd [2009] VSC 105 (Judd J) – lease of Crown land, whether lease enforceable, Crown Land (Reserves) Act, jurisdiction of Supreme Court and VCAT, breach of agreement, estoppel, laches and acquiescence.     

Network Limited v Speck and Ors [2009] VSC 235 (Pagone J) - construction of contract, breach of contract, repudiation, wrongful rescission, good faith.

Leckbarb Pty Ltd trading as Bedzone & Ors v Bev Marks (Australia) Pty Ltd & Ors, VSC Com List, 2009 shareholder oppression, sale of shares under economic duress, breach of contract, implied terms, Trade Practices Act.

Demar Developments v Whiteman
, VSC Com List, 2008 (Hollingworth J) – property development agreements, director’s duties, fiduciary duties, lodgement of caveats, application for removal.

Favelle Favco v Grocon
, VSC Com List, 2008 (Hollingworth J) – interpretation of contract, damages, destruction of crane at MCG, loss of use, mitigation of damages.

Wagmac v GM Holden,
VSC Com List, 2008 (Hargrave J) – competing standard form contracts, construction of contracts, assessment of damages, estoppel.

Toll (FHL) Pty Ltd v PrixCar Services Pty Ltd & Ors [2007] VSC 187 (Hollingsworth J) - contracts, shareholder agreement,  transfer of shares, determination of share value by expert, general dispute resolution provisions, whether expert determination final and binding.

Liberty Financial Pty Ltd & Anor v Scott & Anor (No. 3)
[2005] VSC 363 (Harper J); Liberty Financial Pty Ltd & Anor v Scott & Anor [2005] VSC 26 (Harper J); Liberty Financial Pty Ltd & Anor v Scott & Anor [2004] VSC 490 (Harper J); Liberty Financial Pty Ltd & Anor v Scott & Anor [2004] VSC 382 (Smith J) - complex, large scale commercial dispute, intellectual property, Corporations Law, equity, constructive trusts, breach of contract, breach of fiduciary duty by employee, Barnes v Addy.

Federal Court of Australia

Auss Metals v Express Mobile Services Pty Ltd
(Pagone J current) - franchise agreements, misleading and deceptive conduct, Franchising Code, cross claims by franchisors for breach of franchisee agreement, failure to perform their duties imposed by the Civil Dispute Resolution Act 2011 and the Federal Court of Australia Act 1976.

Eastern Constructions v Valley Earthmoving (Gordon J) – tree plantation and roadwork agreements, duties of good faith and fidelity, breach of fiduciary duties by former employee, ss 182 and 184 of the Corporations Act, acquiescence, estoppel and waiver.  

Australian Competition and Consumer Commission v Taxsmart Group Pty Ltd (Davies J) - franchisees, misleading and deceptive conduct under the Australian Consumer Law, registration requirements for tax agents under the Tax Agents Services Act 2009, injunctive relief and undertakings.

Guardian Property and Asset Management v JLF Corporation Pty Ltd (Murphy J) - enforceability of referral agreement, entitlement to restitution of monies paid, allegation that agreement ex facie illegal, anti-competitive conduct under Competition and Consumer Act 2010, s584 of the Property Agents and Motor Dealers Act 2000 (Qld), sharing of commission under the Estate Agents Act (Vic) 1980

Samuel Savage as Executor of the Estate of John Thomas Savage (Deceased) v Gibbins Investments Pty Ltd (No 2) [2012] FCA 979 (North J) - leave to appeal interlocutory orders, ss 131 Evidence Act 1995 (Cth).

Samuel Savage as Executor of the Estate of John Thomas Savage (Deceased) v Gibbins Investments Pty Ltd [2012] FCA 823 (North J) – leave to appeal interlocutory orders,  s 131 Evidence Act 1995 (Cth),

Gibbins Investments Pty Ltd v Samuel Savage as Executor of the Estate of John Thomas Savage [2012] FCA 742 (Marshall J) - “without prejudice” – s 131 Evidence Act 1995 (Cth), whether applicant can adduce evidence of communications between the parties at the substantive hearing , whether the relevant communications were in respect of a “dispute”, whether genuine attempt to negotiate, whether any of the exceptions in s 131 (2) applied to exclude protection under s 131(1) of the Evidence Act 1995 (Cth)

Florence v Commonwealth Bank of Australia (Middleton J current) – margin lending agreement, Storm Financial Pty Ltd financial advisor, unconscionable conduct, misleading and deceptive conduct, damages.

Comello Pty Ltd v Feeney and Anor – consultancy agreement, monies owing, cross claim for consultancy services, misleading and deceptive conduct, damages.

Bazinga Pty Ltd v Just Lashes Pty Ltd – franchise agreement, force majeure, Competition and Consumer Act.

Peko Rehabilitation Project Pty Ltd (Receiver and Manager Appointed) (in liq)
[2011] FCA 1448 (Murphy J) – Liquidation, section 477(2B) Corporations Act, Court’s jurisdiction to order costs in favour of a non-party

Gibbins Investments Pty Ltd v Savage [2011] FCA 527 (Gordon J) – corporations, Constitution, statutory contract between members, whether Constitution can be varied by implied agreement of members, doctrine of unanimous assent, applicable principles, pre-emptive rights, purported sale of shares to third party, failure to give notice under pre-emptive rights clause of Constitution, whether compliance with pre-emptive rights clause was waived by members,  whether members agreed not to rely on pre-emptive rights – election between inconsistent rights, applicable principles, whether members elected to not insist on their pre-emptive rights, Corporations Act 2001 (Cth) ss 9, 140, 249L, estoppel, applicable principles, whether promissory estoppel or estoppel by convention made out.

Alpha Energy Pty Ltd v Violi [2010] FCA 1210 (Dodds-Streeton J) – contempt of Court, whether contempt by applicant company, a director and employee by breach of Harman obligation, whether used respondents’ discovered documents for collateral purpose of soliciting business from respondents’ customers, whether the applicant should be compelled to produce further documents and swear affidavit in relation to contempt, discussion of nature of contempt proceedings and standard of proof.

Surpion Pty Ltd v M. R. Works Pty Ltd (Receivers and Managers Appointed) [2010] FCA 1262 (Finkelstein J) – corporations, liquidator’s examination, summons to produce, claim for private documents, privilege claimed, jurisdiction to award costs of adjudicating privilege dispute, Corporations Act 2001 (Cth) ss 596B, 597B, Federal Court of Australia Act 1976 (Cth) ss 35A, 43.

Alpha Energy Pty Ltd v Violi [2010] FCA 1210 (Dodds-Streeton J) – contempt of court, whether contempt by applicant company, a director and employee by breach of Harman obligation ,whether used respondents’ discovered documents for collateral purpose of soliciting business from respondents’ customers, whether the applicant should be compelled to produce further documents and swear affidavit in relation to contempt, discussion of nature of contempt proceedings and standard of proof, evidence insufficient to satisfy relevant standard of proof.

Douglass and It Inc v Heeney and Ors, 2010, (Finkelstein J) - shareholder oppression, constructive trusts, equitable compensation, tracing, breach of fiduciary duty by director, Corporations Act.

Effem Foods Pty Ltd v Kockums Bulk Systems Pty Ltd
and Anor, 2010 (Emmett J)- Vienna (Sale of Goods) Convention, private international law, law of Texas, Trade Practices Act, breach of contract, contribution and indemnity, third party claim against insurers.

Surpion Pty Ltd & Anor v M.R. Works Pty Ltd (Receivers and Managers Appointed) ACN 106 987 240 & Ors
, 2010 (Finkelstein J)  - evidence, common and joint interest privilege, complex commercial litigation, receivers and managers, liquidation, monies held on constructive trust, tracing, breach of fiduciary duty by director.

Omingon v Ainsworth,
2008 (Gordon J) – injunction against former employee, restraint of trade, equitable compensation, breach of fiduciary duty by director, Corporations Act.

Slann and Edmondson v Parnall Constructions,
2007 (Gordon J) – application for provisional liquidator, shareholder oppression, equitable compensation, breach of fiduciary duty by director, Corporations Act.

Liberty Financial Pty Ltd v Bluestone Group Pty Ltd 
[2005] FCA 470 (Heerey J ) - discovery, misleading and deceptive conduct, respondent published document alleging applicant’s engagement in other litigation an abuse of process, whether documents relating to applicant’s state of mind in commencing and continuing such litigation discoverable.

Victorian Supreme Court of Appeal

Devon v Capital Finance Australia Limited
[2014] VSCA 73 (Whelan and Santamaria JJA) - whether defence was raised on the pleadings or at trial, whether new defence may be raised on appeal, principles relating to when a new point can be raised on appeal, when a new trial will be ordered on an issue of fact not litigated at trial.

oOh! Media Roadside Pty Ltd (formerly Power Panels Pty Ltd) v Diamond Wheels Pty Ltd & Anor [2011] VSCA 116 (Nettle, Redlich and Weinberg  JJA) - contract, construction, frustration, licence to use site for permitted use of outdoor advertising and promotional material display on large sign board erected on roof of city building, line of sight from major road to sign board later obscured by construction of new building on previously unoccupied land, express term of licence empowering licensee to terminate licence if site became unsuitable for permitted use, whether partial reduction in visibility of sign board meant site became unsuitable for permitted use, whether licence frustrated by partial reduction in visibility of sign board and consequent reduction in value of site.

Walsh v Salzer Constructions Pty Ltd [2000] VSCA 228, (Winneke P, Tadgell and Chernov JJA) - bankruptcy and insolvency, winding up, unfair preference, progress payments to builder, whether such payments void as against liquidator, concept of "running account" and "ear-marked payments".

G & M Aldridge Pty Ltd v Walsh; Elecraft Pty Ltd v Walsh; K & V Plumbers Pty Ltd v Walsh; Barden-Steeldeck Industries Pty Ltd v Walsh
[1999] VSCA 179 (Winneke P, Phillips and Buchanan JJA) - insolvency, preference payment, payment out of moneys held by third party but subject to a charge given by debtor company, payment after crystallisation of charge but before receiver appointed, effect of crystallisation.

Federal Court of Australia, Full Court

Liberty Funding Pty Ltd v Phoenix Capital Ltd
[2005] FCAFC 3 (Branson, Sundberg and Allsop JJ) - practice and procedure, affidavit sworn, filed and served in first proceeding, leave to use the affidavit in later proceedings, legal privilege, rule in Home Office v Harman, Evidence Act (Cwth).

Sedrak v Carney [2001] FCA 92 (Spender, Marshall and Weinberg JJ) - administrative law, natural justice, private prosecution, committal proceeding, Administrative Decisions (Judicial Review) Act.

High Court of Australia (special leave applications)

Sedrak v Sedrak & Anor M86/1999;
Sedrak v Carney & Anor M83/1999; Sedrak v Carney & Ors M134/1999 (3 May 2002) (McHugh and Hayne JJ).

Walsh as Liquidator of Thompson Land Limited (In Liquidation) v Salzer Constructions Pty Ltd M4/2001
(14 December 2001) (McHugh and Gummow JJ).

Elecraft (Aust) Pty Ltd v Walsh M119/1999; G & M Aldridge Pty Ltd v Walsh M118/1999; Barden-Steeldeck Industries Pty Ltd v Walsh M121/1999; K & V Plumbers Pty Ltd v Walsh M120/1999
 (8 September 2000) (McHugh and Gummow JJ).

High Court of Australia

G and M Aldridge Pty Ltd v Walsh
[2001] HCA 27; 203 CLR 662; 179 ALR 416; 75 ALJR 975  - payments from property subject to fixed and floating charge, payments made after crystallisation of floating charge, chargee took no action in relation to payments, whether payments had effect of giving creditors a preference, priority or advantage over general body of unsecured creditors.

OTHER RELEVANT INFORMATION

Pro Bono Assistance

Anthony provides regular pro bono assistance to, inter alia, PILCH and is a member of the Victorian Bar Legal Assistance Scheme. Cases include: 

  • Westpac v Aitken Northern Territory SC (current) - responsible lending under National Consumer Credit Protection Act 2009 (Cth), mortgage, indefeasibility of title, in personam claims against mortgagee, non est factum, equitable relief, unconscionable conduct in equity.
  • Olalla v Olalla (2011)elderly parents, breach of fiduciary duty, mortgage payments, constructive trusts, damages, tracing.
  • First Mortgage Managements Investments Ltd v Bannister VSC (2009) – elderly women, mortgage arrears, breach of agreement by financier, application for an accounting of monies due.
  • In the matter of Keith Hunter VSC (late 2005) - elderly indigenous man facing eviction from a house owned by a family member, long-term tenant of over 40 years, possessory rights over land, equitable rights, constructive trusts.
  • Wren Close Nominees Pty Ltd v McCulloch [2002] VSC 138 (Beach J) - prisoner, mortgagor, mortgagor's default, mortgagee's claim for possession, section 78 of the Transfer of Land Act.
  • Bartelt v Inchcape Financial Services (Aust) Ltd, VCAT Credit List  (June 2002) – credit contract, motor car purchase by consumer with mental disorder, Consumer Credit (Victoria) Code, Fair Trading Act, damages for sale of goods at an undervalue.
  • Capital Finance Australia Ltd v Bartelt (May 2002) - whether finance agreement unconscionable or unjust, stay of proceedings, Consumer Credit Code dispute, Fair Trading Act

Continuing Legal Education    

Anthony also contributes to the Leo Cussen Institute Continuing Legal Education courses and to peer group continuing education:

  • Government Lawyers Conference, ‘Misfeasance in Public Office’ RACV Club, March 2015.
  • Australian Commercial Lawyers Association, 2013 National Conference, Hobart, ‘Contracts: The penalties doctrine and exclusion and indemnity clauses’, November 2013.
  • Leo Cussen Institute Seminar, 'Proportionate Liability - An update on recent developments, Hunt & Hunt v Mitchell Morgan Nominees’, March 2013.
  • Thompson Reuters Contract Law Masterclass, Contractual disputes: dealing with serious breaches of contract’ June 2012
  • Unsuitable lending under the National Consumer Credit Protection Act 2009 (Cth), February 2012, paper and presentation to national law firm.
  • Leo Cussen Institute Seminar, 'Damages and recent developments', September 2010.
  • Mortgage and Indefeasibility of Title, July 2010, paper and presentation to national law firm concerning the mortgages and indefeasibility of title, Solak v Bank of Western Australia Ltd & Ors [2009] VSC 82.
  • Leo Cussen Institute Seminar, Damages and Recent Developments, October 2008, paper and presentation concerning the law of damages and recent developments, including clarification of the meaning of “consequential loss” in claims for breach of contract in Environment Systems Pty Ltd v Peerless Holdings Pty Ltd. 
  • Leo Cussen Institute Seminar, Litigation conference, Transferring proceeding to another jurisdiction, November 2008, paper and presentation, overview on the cross vesting proceeding to another jurisdiction.
  • Leo Cussen Institute Seminar, Damages and the Taxation Consequences, March 2007, paper and presentation concerning the law of damages focusing on claims involving breach of contract and tort.
  • Leo Cussen Institute Seminar, Contract Law Intensive, September 2006, paper and presentation concerning common law remedies for breach of contract.

Community, Legal and Public Involvement 


View / Print Anthony Rodbard-Bean's profile on Foley's List website.  

Areas of Practice

Common Law/Personal Injury

  • Intentional Torts
  • Professional Negligence

Commercial

  • Appellate
  • Banking
  • Bankruptcy
  • Competition
  • Consumer Protection Law
  • Contractual Disputes
  • Corporate Insolvency
  • Corporations Law
  • Insurance
  • Intellectual Property
  • Partnership Disputes
  • Professional Liability
  • Real Property
  • Restraint of Trade
  • Securities and Investments

Equity

  • Appellate
  • Family Provision
  • Real Property
  • Trusts
  • Wills and Probate

Defamation

International Law

  • Choice of Law

Alternative Dispute Resolution

Also Entitled to Practise in

  • All Australian States and Jurisdictions
From 1 Jul 2008, liability limited by a scheme approved under Professional Standards Legislation.


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