This is an appeal from a decision of the Magistrates’ Court at Melbourne on 8 May 2009 dismissing a claim by the appellant (‘Structured’) for damages under s 159 of the Fair Trading Act 1985 (‘the FTA’) and s 82 of the Trade Practices Act 1974 (Cth) (‘the TPA’) against the first respondent (‘Ms Bennett’). Structured sought damages from Ms Bennett for her alleged misleading or deceptive conduct in breach of s 9 of the FTA and s 52 of the TPA, respectively.

This is an appeal from a decision of the Magistrates’ Court at Melbourne on 8 May 2009 dismissing a claim by the appellant (‘Structured’) for damages under s 159 of the Fair Trading Act 1985 (‘the FTA’) and s 82 of the Trade Practices Act 1974 (Cth) (‘the TPA’) against the first respondent (‘Ms Bennett’). Structured sought damages from Ms Bennett for her alleged misleading or deceptive conduct in breach of s 9 of the FTA and s 52 of the TPA, respectively.

CONTRACT – Penalties – Applicable test in deciding whether liquidated damages clauses in hire purchase agreements were penalties – Whether test applied correctly – Absence of formula calculating net loss, lack of difficulty in estimating net loss, lack of relationship between pre-estimates of damages caused by breach and amounts payable indicated that the clauses were penalties.

CONTRACT – Penalties – Applicable test in deciding whether liquidated damages clauses in hire purchase agreements were penalties – Whether test applied correctly – Absence of formula calculating net loss, lack of difficulty in estimating net loss, lack of relationship between pre-estimates of damages caused by breach and amounts payable indicated that the clauses were penalties.

DEFAMATION – pleading – fair comment – whether the defendants had pleaded the facts supporting the defence of fair comment.

DEFAMATION – pleading - fair comment - ruling made on 6 November 2009 that facts particularised by the defendant did not support the defence of fair comment – defence amended – whether amendments particularised facts supporting the defence of fair comment.

Credit – application to strike out/dismiss claim – whether Consumer Credit Code applies – whether business purpose declaration ineffective – whether doctrine of non est factum applies – relevant principles on strike out application where many aspects of claim contested – Consumer Credit (Victoria) Code ss6, 11, 70 and 176 and Sched 1;Consumer Credit (Victoria) Regulations r10; Victorian Civil and Administrative Tribunal Act 1998 s75

Credit - application to strike out/dismiss claim - whether Consumer Credit Code applies - whether business purpose declaration ineffective - whether doctrine of…

Credit - application to strike out/dismiss claim - whether Consumer Credit Code applies - whether business purpose declaration ineffective - whether doctrine of non est factum applies -relevant pr inciples on str ike out application where many aspects of claim contested.

The plaintiff (“Allforks”) claims against the defendant on guarantees the defendant executed on 24 January 2006 (the “guarantees”). The guarantees related to the obligations of a company known as Priority Road Express Pty Ltd (“PRE”) pursuant to four hire agreements (the “hire agreements”) entered into between the plaintiff and PRE. The subject of the hire agreements were four forklift trucks (the” forklifts”) utilised by PRE in its transportation business.

BANKRUPTCY – review of a sequestration order of a Registrar – proceeding can be amended by substitution of a petitioning creditort ...

Seeking relief and orders in relation to the distribution rights to a software concept granted to it.

This is an application for leave to appeal from an interlocutory judgment ...

COURTS AND JUDICIAL SYSTEM – cross-vesting – applicant commenced defamation proceedings in a Supreme Court

COURTS AND JUDICIAL SYSTEM – cross-vesting – applicant commenced defamation proceedings in a Supreme Court

Catchwords: Contract - Sale of truck and concrete pump - Payment of balance of purchase price to be made approximately six months after initial payment and possession taken by the plaintiff - Equipment later repossessed by the defendants when balance of purchase money not made - Conversion.

Claim for privilege against self-incrimination – compliance with an asset preservation order – whether reasonable grounds for witness objecting to giving evidence – whether interests of justice require the disclosure of information that will tend to incriminate the witness – application of s 128(5) Evidence Act 1995 (Cth) to affidavit evidence.

Application for Mareva orders – application made inter-parties in the course of the litigation consequent upon access to documents obtained in execution of an Anton Pillar order.

TRADE PRACTICES − Franchise agreement − failure to comply with franchising code ...

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS