- Commercial Litigation and Dispute Resolution
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The litigation team at Schetzer Brott & Appel has acted in numerous large scale and high profile matters over a number of years.
Schetzer Brott & Appel has developed a reputation in commercial litigation and dispute resolution for acting in matters that are highly complex, sophisticated and involve a large volume of documentation.
Schetzer Brott & Appel 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 Schetzer Brott & Appel has to offer, below is a series of case summaries in regard to matters conducted by the commercial litigation team at Schetzer Brott & Appel.
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.
- 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)
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- 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
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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)
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- LANDROW PROPERTIES PTY LTD & HEENI PTY LTD -v- COMMISSIONER OF STATE REVENUE
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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 has now commenced an appeal against the decision.
www.austlii.edu.au/au/cases/vic/VSC/2008/590.html
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- AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION V PRIMELIFE CORPORATION LIMITED
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(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
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