PRACTICE PARTICULARS

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

AREAS OF PRACTICE; SELECT APPEARANCE NOTES

Victorian Supreme Court 

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 (Davies J, current) -  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.

Woodards (Central) Pty Ltd v Luntz & Co (a firm) [2004] VSC 41 (Balmford J) - appeal, contract, right to termination for breach of obligation.

Deputy Commissioner of Taxation v Advanced Communications Technologies (Australia) Pty Ltd [2003] VSC 487 (Hansen J) - sale of shares, conditions precedent, instalments of purchase price, provision for retention of instalments paid if sale not completed for any reason, whether penalty, whether relief against forfeiture.

Asia Infotech Pte Ltd v Advanced Communications Technologies (Australia) Pty Ltd & Ors [2003] VSC 131 (Byrne J) - interlocutory injunction, serious issue to be tried, balance of convenience.

Chan & Ors v Chen & Ors [2003] VSC 479 (Habersberger J) - application for interlocutory mandatory injunction, defendants in possession of plaintiffs' property, balance of convenience, whether defendants likely to gain possession of the property even if successful at trial, injunction granted.

Suffern v Suffern - Noble [2002] VSC 389  (Balmford J) - application for further provision for the plaintiff's maintenance and support out of the deceased's estate.

Accredited Aged Care Facilities Pty Ltd v Banyan Tree [2002] VSC 261 (McDonald J) - sale of nursing home, breach of contract, Trade Practices Act. 

Islamic Co-ordinating Council of Vic Pty Ltd v Chawk & Ors [2002] VSC 20 (Ashley J) - contempt of court, civil contempt, alleged disobedience of injunction.

Islamic Co-Ordinating Council of Victoria v Chawk [2001] VSC 414 (McDonald J) - worldwide Mareva injunction, overseas bank accounts, further order as to identification of bank and other accounts.

Islamic Co-ordinating Council of Australia Inc v Chawk & Ors [2001] VSC 178 (Harper J) - interlocutory judgment, application to set aside Mareva injunction, whether a serious issue to be tried, alleged breach of fiduciary duty.

Advent Investors Pty Ltd & Ors v Goldhirsch & Ors [2001] VSC 59 (Warren J) -Corporations Law, CLERP amendments, derivative proceedings, rule in Foss v Harbottle, abolition of common law proceedings.

Pinnacle V.R.B. Pty Ltd v Ronay Investments Pty Ltd [2000] VSC 330 (Beach J) - power of directors to postpone meeting called by shareholders, articles of association, section 249F of the Corporations Law.

Treiser & Anor v Michigan Investments Pty Ltd & Anor [2000] VSC 301 (Smith J) - contract, misrepresentations, misleading and deceptive conduct, damages.

Bayne v Karaliamis & Ors [2000] VSC 160  (Harper J) - sale of land, claim by vendor of position of special disadvantage, whether purchasers took unconscionable advantage of vendor's position, whether transaction was unfair, unjust or unreasonable.

Thompson Land Limited & Anor v Lend Lease Shopping Centre Development Pty Ltd & Anor [2000] VSC 108 (McDonald J) - winding up, bank guarantee guaranteeing performance of companies obligations under contract, company account overdrawn, payments made by bank to creditor, bank cheques, whether payments void as dispositions of company's property.

Noitaroproc Pty Ltd (In Liquidation) v Hodgson as liquidator of Geelong Building Society (In Liquidation) [1999] VSC 507 (Byrne J) - appeal by company in liquidation against rejection of proof of debt by liquidator of associated company, whether order for security would stultify appeal, delay.

Thompson Land & Anor v Salzer Constructions Pty Ltd [1998] VSC 111 (Byrne J) -winding up, undue preferences, payment by insolvent holding company to creditor of subsidiary, holding company liable to make payment under indemnity guarantee.

Federal Court of Australia

Douglass and It Inc v Heeney and Ors (Finkelstein J, current)  - 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 (Emmett J, current) - Vienna (Sale of Goods) Convention, private international law, law of Texas, Trade Practices Act, breach of contract, contribution and indemnity, cthird party claim against insurers.

Surpion Pty Ltd & Anor v M.R. Works Pty Ltd (Receivers and Managers Appointed) ACN 106 987 240 & Ors (Finkelstein J, current)  - 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.

Liberty Funding v Phoenix Capital Ltd [2004] FCA 1640 (Marshall J) - evidence, legal professional privilege,  leave to use affidavit in other proceedings, affidavit prepared by order of Court and in contemplation of mediation, whether service of affidavit on party amounted to waiver of privilege.

Melbourne University Student Union Inc v National Union of Students Inc [2002] FCA 493 (Goldberg J) - application for interlocutory injunction pursuant to s 49 of the Associations Incorporation 1991 Act (ACT), injunction sought restraining National Union of Students from convening Special State Conference of Victorian Branch, injunction sought restraining union from electing officers of Victorian State Branch, whether elected officers might implement policies or make decisions which were irreversible.

Sedrak v Carney [2000] FCA 987 (Sundberg J) - Administrative law, natural justice, private prosecution, committal proceeding, Administrative Decisions (Judicial Review) Act.

Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 56 (Merkel J) - representative proceedings under Part IVA of Federal Court of Australia Act, group members suffered economic loss as the result of cessation of supply of gas in Victoria, abuse of process, whether proceedings issued for improper purpose of "fishing" or to "capture the market" for the claims of group members.

Micro Minerals Pty Ltd v Grossberg [1998] FCA 1795 (Finkelstein J) - partnership, liability of firm for the wrongful act of partner, whether wrongful act committed in the ordinary course of the firm's business.

Victorian Supreme Court of Appeal

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: 

• 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.·

• 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. 
• Litigation conference, Transferring proceeding to another jurisdiction, November 2008, paper and presentation, overview on the cross vesting proceeding to another jurisdiction.
• Damages and the Taxation Consequences, March 2007, paper and presentation concerning the law of damages focusing on claims involving breach of contract and tort.
• Contract Law Intensive, September 2006, paper and presentation concerning common law remedies for breach of contract.

• Board Member of The Intrepid Foundation
• Member of the Board of the Melbourne Football Club 1996 to 2001.
• Executive Member International Commission of Jurists (Vic) 1996 to 2000.
• Member of Australian Labour Party Legal Affairs and Policy Committee 1995 to 1999.
• Former Lecturer in Business Law, Caulfield Institute of Technology.
• Member Foley’s List Committee 2005 to date.
• Member Anglo - Australasian Lawyers Society