Raini Zambelli | Victorian Bar

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About
Cases

Date of Admission:

28 Apr 2003

First Signed Bar Roll:

22 Oct 2015

Nationally Accredited Mediator:

23 Oct 2015

Accredited Advanced Mediator:

17 Jun 2022

Division of Bar Roll:

Victorian Practising Counsel

Qualifications:

BA, LLB, LLM

Admitted Elsewhere:

England & Wales

Previous Occupation:

Senior Associate, Pinsent Masons (2009-2015), Lander & Rogers (2002-2009)

Accepts briefs from in-house counsel

Profile:

Raini Zambelli is a corporate and commercial law barrister. She has acted for large financial institutions, governments, and government agencies, corporate entities of all size, directors, joint ventures and partnerships. Raini specialises in complex insolvency, financial and cross-border disputes together with securities class actions and has over 21 years' litigation experience in Australia and internationally. Before coming to the Bar, Raini practised as a solicitor in Melbourne and in London. She also has extensive experience in the financial services sector (having spent two years seconded as in-house counsel to Royal Sun Alliance and to the Royal Bank of Scotland) and across a wide variety of general contractual and property disputes.

She holds a Masters of Law majoring in contentious insolvency and international arbitration, is recognised as an Advanced Mediator by the Victorian Bar and was dux of her year in ARITA’s Insolvency Education Program. She was called to the English Bar as a member of the Honourable Society of the Middle Temple, is qualified as a mediator in Australia (NMAS) and in the United Kingdom (ADR Group), and is a Fellow of the Chartered Institute of Arbitrators (FCiArb). Raini is additionally appointed as an Advanced Mediator of the Victorian Bar (VBAM).

Raini has conducted significant litigation involving large-scale corporate collapses in the Supreme Court of Victoria, Federal Court of Australia and in the High Court and the Court of Appeal of England and Wales. She also specialises in corporations and securities law class actions, including market misconduct provisions of the Corporations Act, ASIC Act, and financial services laws generally.

Raini is recognised for her technical excellence and client relationship skills by the following publications:

- Chambers & Partners, as a leader in the field of Restructuring & Insolvency (2017-2024);

- Doyle's Guide, as pre-eminent Insolvency & Restructuring Junior Counsel in 2023 and 2022 (and before that as leading Junior Counsel 2018-2021);

- Doyle's Guide, as pre-eminent Commercial Litigation & Dispute Resolution Junior Counsel in 2023 and 2022 (and before that as leading Junior Counsel 2018-2021);

- Doyle's Guide, as a leading mediator in 2023; and

- The Best Lawyers in Australia for her work in International Arbitration, Alternative Dispute Resolution and Insolvency and Reorganisation Law (2021-2024 editions).

Raini has served as an elected member of the Bar Council in 2019-2020, 2021-2022, 2022-2023 and has recently been re-elected to serve a fourth term in 2023-2024, and appointed to the Bar Council's Executive as its Assistant Honourary Treasurer.

Click here to view Raini's List A profile

Victorian Bar Committees

Alternative Dispute Resolution Committee 2015-2017
Arts & Collections Committee 2017-2020
Bar Council 2019-2020, 2021-2022, 2022-2023 and 2023 - present
Bar Council Executive, Assistant Honourary Treasurer, 2023 - present
Audit, Finance & Risk Committee, Deputy Chair, 2023 - present
Counsel Committee 2022 - 2023
Executive Committee of the Commercial Bar Association 2019 - present
Insolvency Section Monitor of the Commercial Bar Association 2015 - 2019
International Arbitration Committee (and VCAS) 2017 - 2023
Readers' Course Committee 2021 - 2023
Women Barristers' Association 2015 - present

Other Committees and Working Groups

ACICA - the Australian Centre for International Commercial Arbitration - Victorian State Committee
International Committee of the Australian Bar Association
Federal Court Corporations and Commercial Users' Group
Insolvency and Reconstruction Law Committee of the Law Council of Australia
United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration and Conciliation / Dispute Settlement) 72nd Session in Vienna

Professional Memberships

ARITA - the Australian Restructuring Insolvency & Turnaround Association (RITP)
CiArb - the Chartered Institute of Arbitrators Fellowship (FCiArb)
The Law Council of Australia
INSOL International - the International Association of Restructuring, Insolvency and Bankruptcy Professionals
UNCCA - the UNCITRAL Coordination Committee for Australia
WIRV - Women in Insolvency and Restructuring Victoria

Cases:

Re Eliana Construction and Developing Group Pty Ltd [2023] VSC 639 (costs)

Download 2023 12 01 S ECI 2022 03446 Re Eliana Construction and Developing Group Pty Ltd (Costs).pdf (1.43 MB)

Indemnity costs granted

Re Eliana Construction and Developing Group Pty Ltd [2023] VSC 639

https://jade.io/article/1052582?at.hl=%255B2023%255D%20VSC%20639

Download 2023 11 02 Re Eliana Construction and Developing Group Pty Ltd [2023] VSC 639.pdf (403.61 KB)

CORPORATIONS — Winding up — Proof of debt — Corporations Act 2001 (Cth) (‘Corporations Act’) — Section 90-15 (Schedule 2, Insolvency Practice Schedule (Corporations)) — Corporations Regulations 2001 (Cth) — Reg 5.6.54 — Appeal against liquidator’s rejection of proof of debt — Role of Court — Whether debt claimed a true liability of the company and enforceable according to law — Where payment made by plaintiff under deed of guarantee and indemnity towards taxation liabilities of related company — Where plaintiff seeks to subrogate to rights of Commissioner of Taxation as priority creditor under s 556(1)(e) of the Corporations Act — Whether terms of deed prevent plaintiff from subrogating and proving in liquidation of company — Rule against double proofs — Matter of substance not of form.

Kajula Pty Ltd v Downer EDI Limited (Federal Court of Australia Proceeding NSD 520 of 2023)

Multiplicity contest for carriage of shareholder group proceedings against Downer EDI Limited, instructed by Quinn Emanuel Urquhart & Sullivan.

DA Lynch v Star Entertainment Group; Drake v Star Entertainment Group; Huang v Star Entertainment Group; Jowene v Star Entertainment Group [2023] VSC 561

https://jade.io/article/1047410?at.hl=%255B2023%255D%20VSC%20561

Download 2023 09 19 DA LYNCH PTY LTD v STAR ENTERTAINMENT GROUP LTD BC202313365.pdf (617.71 KB)

GROUP PROCEEDINGS — Practice and procedure — Multiplicity — Four representative proceedings commenced against same defendant in relation to same controversy — Overlap between claims — Plaintiff in each proceeding seeks permanent stay of the other proceedings — Wigmans v AMP Ltd (2021) 270 CLR 623 — Application granted in three proceedings. GROUP PROCEEDINGS — Costs — Application for a Group Costs Order — Costs to be calculated as a percentage of the amount of any award or settlement recovered — Judicial discretion in open textured legislation Supreme Court Act 1986 (Vic) s 33ZDA — Fox v Westpac; Crawford v ANZ [2021] VSC 573 — Application granted in one proceeding. PRACTICE AND PROCEDURE — Application to re-open to admit fresh evidence — Application refused.

Jowene Pty Limited atf Biro Citer Souvenirs Pty Limited Pension Fund v Downer EDI Limited [2023] FCA 924

Download JOWENE PTY LTD (ATF BIRO CITER SOUVENIRS PTY LTD PENSION FUND) v DOWNER EDI LTD BC202310947.pdf (139.36 KB)

PRACTICE AND PROCEDURE – cross-vesting – application to transfer three open class action proceedings to the Supreme Court of Victoria – application not opposed by respondent – Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(4) – Corporations Act 2001 (Cth) s 1337H(2) – whether in the interests of justice – whether Supreme Court of Victoria is the “natural forum” – application granted

Deppeler, in the matter of Moulamein Grain Co-Operative Limited (in liquidation) (No 3) [2023] FCA 803

Download 2023 07 14 Moulamein Grain Co Operative Limited (No 3) [2023] FCA 803.pdf (307.7 KB)

CORPORATIONS – where court made order appointing first and second plaintiffs receivers (Receivers) over certain grain held by the third plaintiff, a grain growers’ Co-operative – where prior to their appointment Receivers appointed as voluntary administrators of the Co-operative – where Receivers in their capacity as voluntary administrators took steps to preserve grain held by the Co-operative belonging to growers – where Receivers sought to recover remuneration referable to preserving grain in their capacity as voluntary administrators – whether s 425 of the Corporations Act 2001 (Cth) confers power to fix the amount to be paid by way of remuneration to a court appointed receiver – Held: s 425 applies only to privately appointed receivers – meaning of “instrument” within the meaning of s 425 considered – “instrument” does not include a court order – importance of distinction between court appointed and privately appointed receivers considered – certain cases standing for the proposition that that s 425 of the Corporations Act 2001 (Cth) gives the court power to fix the remuneration of a court appointed receiver wrongly decided and not followed – whether r 14.24 of the Federal Court Rules 2011 (Cth) confers power to fix the amount to be paid by way of remuneration to a court appointed receiver – Held: entitlement to remuneration under r 14.24 is limited to work carried out by receivers in that capacity EQUITY – where Receivers had an equitable lien over funds generated from sale of grain to recover remuneration for the period prior to their appointment on the basis of the principle in Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 – where remuneration referable exclusively to the preservation of grain – declaration granted – determination of remuneration referred to Judicial Registrar, absent agreement between Receivers and interested parties

Deppeler, in the matter of Moulamein Grain Co-Operative Limited (in liquidation) (No 2) [2023] FCA 658

Download 2023 06 20 Moulamein Grain Co Operative Limited (No 2) [2023] FCA 658.pdf (733.38 KB)

CORPORATIONS – where court made order appointing receivers over certain grain held by the third plaintiff, a grain growers’ Co-operative – where Co-operative in liquidation – where grain realised and converted into money – where order sought by receivers that they were justified and acting reasonably in proceeding on the basis that net proceeds of realisation of grain be distributed in accordance with a particular proposed method – where order sought by receivers that they were justified and acting reasonably in proceeding on the basis that net proceeds from realisation of so-called “Surplus Grain” be retained by the Co-operative in liquidation and applied for the benefit of creditors generally as an asset available in the winding up – where certain growers (interested parties) given leave to appear to contend that method of distribution of the proceeds of sale proposed by the receivers should be rejected and the proceeds instead be paid to growers in accordance with an alternative method – where growers held to be taken to have abandoned any claims to the Surplus Grain or proceeds thereof – matter listed for further hearing, including about appropriate form of relief

Allen & Anor v G8 Education Limited (Victorian Supreme Court Proceeding 054339 of 2022)

Shareholder class action against G8 Education Limited.

Somers & Ors v Box Hill Institute [2022] VSC 730

Download Somers v BHI [2022] VSC 730.pdf (402.75 KB)

REPRESENTATIVE PROCEEDINGS – Part 4A Group proceeding – Application for approval of settlement – Whether proposed settlement is fair and reasonable – Relevant considerations – Approval for payment of legal costs from settlement sum – Whether loading permitted by r 63.48 should be applied and at what rate – Approval of costs of settlement administration – Appointment of Scheme Administrator – Supreme Court Act 1986 (Vic) pt 4A, s 33V; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.48.

Re Birch, Geelong Fire Services Pty Ltd (Admins Apptd) [2022] FCA 963

Birch, in the matter of Geelong Fire Services Pty Ltd (Administrators Appointed) [2022] FCA 963

Download 2022 08 12 Geelong Fire Services (admins apptd) [2022] FCA 963.pdf (173.66 KB)

CORPORATIONS — Administration — Application for order relieving the administrators of personal liability in relation to a funding agreement with parent of company in administration — Application for order to give effect to a security interest over the company’s assets — Order made.

Shepard, in the matter of Palla Pharma Limited (administrators appointed) [2022] FCA 8

Download 2022 01 19 Shepard, in the matter of Palla Pharma Limited (administrators appointed) [2022] FCA 8.pdf (298.64 KB)

CORPORATIONS – application for a 90 day extension of the convening period for a meeting of the creditors under s 439A(6) of the Corporations Act 2001 (Cth) – application under s 447A(1) for an ancillary order that the meeting be permitted to be held at any time with five days after the extended convening period – appropriate case for extension of convening period and ancillary orders – orders accordingly made.

Samuel & Charlie Nominees Pty Ltd v Supreme Dental Grandview Pty Ltd [2021] VSC 589

Samuel & Charlie Nominees Pty Ltd v Supreme Dental Grandview Pty Ltd

COSTS – Plaintiff applied for an order for registration of a transfer of shares from a trustee – Proceeding dismissed after corporation agreed to transfer shares to plaintiff’s shareholder – Plaintiff and corporation each applied for costs – Principles to be applied – Whether corporation had capitulated – Whether corporation entitled to costs by reason of the plaintiff’s unreasonable conduct in the litigation – Order that each party bear its own costs.

Re Walden Cloud Group Pty Ltd (atf Walden Cloud Group Trust) (admins apptd) (2021) 149 ACSR 637

In the matter of Walden Cloud Group Pty Ltd (Administrators Appointed) [2021] FCA 97

Download 2021 02 12 Walden Cloud Group Pty Ltd (Admins Appointed) [2021] FCA 97 (Beach J).pdf (308.93 KB)

CORPORATIONS – insolvency – voluntary administration – receivers appointed concerning trust assets – sale of property and business – order under s 442C(2)(c) of the Corporations Act 2001 (Cth) for disposal by administrators of encumbered property – operation of s 441A on the mortgagee – relevance of enforcement action by a predecessor in title – application by mortgagee for leave to enforce mortgage – competing sale of land proposals – leave granted under s 440B(2)(b) for mortgagee to exercise power of sale – application to restrain mortgagee sale of land – sale of business – rival deed of company arrangement proposed – undertaking concerning employee entitlements – order sought under s 447A seeking modification to operation of s 440B – application to restrain mortgagee sale refused

Fincore v Webb [2020] VSC 831

Download 2020 12 11 Fincore v Webb [2020] VSC 831 (Derham AsJ).pdf (661.5 KB)

PROPERTY LAW – Application under s 116A(1A) of the Transfer of Land Act 1958 (Vic) for the production to the plaintiff of a certificate of title to land – First defendant granted an equitable mortgage to the plaintiff – Plaintiff is, by virtue of its equitable mortgage and under contract, a ‘person interested’ for the purposes of s 116A(1A) of the Transfer of Land Act 1958 – Mitrovic v Koren [1971] VR 479; Kousal v Suncorp-Metway Ltd [2011] VSC 312, considered.

Nationwide Plant Hire Pty Ltd v Casal Corporate Advisory Pty Ltd [2020] VSC 688

Download 2020 10 30 Nationwide v Casal [2020] VSC 688 Randall AsJ.pdf (569.1 KB)

CORPORATIONS – Application to set aside a statutory demand pursuant to s 459G of the Corporations Act 2001 (Cth) – Whether there is a genuine dispute as to the existence of the debt – The meaning of debt in s 459E of the Corporations Act 2001 (Cth) – Whether a quantum meruit claim is a debt – Whether conduct constitutes an admission as to the existence of a debt – Whether there is promissory estoppel by way of a representation by silence – Whether there is a genuine dispute as to the quantum of the debt

Re Redstar Transport (in liq) & Ors [2020] VSC 547

Download 2020 08 31 Judgment.pdf (3 MB)

CORPORATIONS – External administration – Application for directions regarding funds handling by external administrator – Where intercompany loans of substantial value adjudicated – Where independent advice sought, made available for creditors and acted on – Where dividends paid – Where liquidators remuneration and other costs of external administration incurred – Where companies in administration part of a corporate group – where one member of corporate group manages operations and finances – Where compliance with funds handling provisions would incur unnecessary costs in the administrations – Application allowed

McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) [2020] FCA 666

Download 2020 05 19 Judgment [2020] FCA 666 (O'Bryan J).pdf (328.55 KB)

CORPORATIONS – application by administrators for leave under s 44C(2)(c) of the Corporations Act 2010 (Cth) to dispose of property of the companies under administration that is subject to a security interest and property used or occupied by, or in the possession of, the companies under administration but of which someone else is the owner – where application made urgently because of condition precedent to sale proposed by administrators – whether arrangements made that would adequately protect the interests of the secured parties and owners of the property being sold – ancillary relief granted under s 447A of the Corporations Act to ensure that intellectual property rights can be transferred unencumbered by security interests

Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242

Download 2020 05 11 Judgment AVSS v NDP [2020] VSC 242.pdf (279.84 KB)

PRACTICE AND PROCEDURE - Application for insolvent trading exoneration defence to be heard separately – Application for third party proceeding to be heard separately – Utility, economy and fairness of trial of separate questions not beyond question – Applications dismissed – Application by defendants for leave to commence derivative proceeding in the name of the plaintiff – Allegations of breach of trust and fiduciary duties by receivers – Potential delay of trial – Derivative proceeding inutile if Court rejects aspects of defence and counterclaim – Application dismissed – Application by third parties for summary judgment – Second defendant claiming equitable contribution in respect of liability for insolvent trading – Questionable whether limitation period prescribed by s 24(4) Wrongs Act 1958 (Vic) applies to claim for equitable contribution – Allegations of unconscionable conduct potentially relevant to application of s 24(4) Wrongs Act 1958 (Vic) – Appropriate to determine issue at trial – Application dismissed – Corporations Act 2001 (Cth) ss 588G, 588M, 1317S, 1318 – Wrongs Act 1958 (Vic) ss 23B, 24(4) – Civil Procedure Act 2010 (Vic) ss 7, 62, 63 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 11.12, 11.13, 47.04.

Nom De Plume v Ascot Vale Self Storage [No 2] [2020] VSCA 70

Download 2020 03 27 Nom De Plume Pty Ltd v Ascot Vale Self Storage Pty Ltd (in liq) [2020] VSCA 70.pdf (273.66 KB)

CORPORATIONS – Liquidation – Litigation funding agreement – Corporations Act 2001 (Cth) s 477(2B) – Whether necessary to seek court approval of agreement after approval refused for two prior agreements – Unnecessary to seek court approval of agreement approved by creditors – No abuse of process in circumstances. PRACTICE AND PROCEDURE substantial creditor to fund proceeding brought by liquidator – Applications for court approval of previous funding agreements rejected – Operative funding agreement approved by creditors without court application – Whether abuse of process to litigate on basis of funding agreement after court approval of earlier agreements refused – Whether funding agreement compromised liquidator’s independence – Provisions requiring funder consent to proceedings and entitling funder to terminate agreement – Liquidator’s independence not compromised – Degree of funder control unexceptional and not improper – Clairs Keeley v Treacy (2004) 29 WAR 479, considered – Appeal dismissed. PRACTICE AND PROCEDURE – Permanent stay – Delay – Whether delay attributable to liquidator’s lack of funding and failure to secure court approval of funding agreements – Delay not sole responsibility of liquidator – No actual prejudice – Civil Procedure Act 2010 ss 7, 8, 25.

Queensland Phosphate Pty Ltd v Korda [2019] VSCA 119

Download 2019 05 30 Judgment - application to lift the stay McLeish and Hargrave JJA.pdf (107.43 KB)

PRACTICE AND PROCEDURE – Stay – Winding-up order – Applicants granted stay pending appeal – Stay unopposed by respondents – Order for payment of arrears of rental and annual fees in respect of mining tenements – Undertaking to inform authorities of appeal – Breach by applicants of order and undertaking – Application by respondents to lift stay – Whether mining tenements at risk of cancellation for non-payment of rent and annual fees – Mineral Resources Act 1989 (Qld) ss 160, 308(2); Environmental Protection Act 1994 (Qld) ss 278(2)(f), 280, 316I – Whether onus on applicants to establish special or exceptional circumstances – Stay varied to require payment of arrears within 14 days.

Ascot Vale Self Storage Pty Ltd (in Liq) v Nom de Plume Pty Ltd [2019] VSC 794

Download ASCOT VALE SELF STORAGE CENTRE PTY LTD (IN LIQ) v NOM DE PLUME NOMINEES PTY LTD BC201911371.pdf (384.35 KB)

ABUSE OF PROCESS – Principles to be applied – Relevance of Civil Procedure Act 2010 (Vic) principles – Reasonableness of degree of control by litigation funder considered. LIQUIDATORS – Policy of encouraging creditors to fund litigation by liquidator discussed– Whether liquidator required to obtain court approval for litigation funding agreement under s 477(2B) of the Corporations Act 2001 (Cth). PRACTICE AND PROCEDURE – Appeal from Associate Judge – Whether appellants established errors in approach – Orders set aside.

Queensland Phosphate Pty Ltd v Korda [No 2] [2019] VSCA 215

Download QUEENSLAND PHOSPHATE PTY LTD v KORDA BC201909109.pdf (534.22 KB)

INSOLVENCY – Dormant mining company with insufficient cash to meet liabilities – Ownership of valuable mining tenements through subsidiary – Whether tenements realisable within reasonable period to enable payment of debts – Whether company able to pay all its debts as and when they became due and payable – Whether fact that tenements necessary for company’s ongoing business precluded them from being treated as realisable assets – Jingellic Minerals NL v Beach Petroleum NL (1991) 56 SASR 532 considered – Rees v Bank of New South Wales (1964) 111 CLR 210, Re Timbatec Pty Ltd (1974) 24 FLR 30, Switz Pty Ltd v Glowbind Pty Ltd (2000) 18 ACLC 343 applied – Re Adnot Pty Ltd (1982) 7 ACLR 212, Re Newark Pty Ltd (in liq) [1993] 1 Qd R 409 distinguished – Corporations Act 2001 (Cth) ss 95A, 459A, 585. INSOLVENCY – Whether subsidiary insolvent – Whether subsidiary should be wound up on the just and equitable ground – Corporations Act 2001 (Cth) ss 459A, 461(1)(k). CORPORATIONS – Uncommercial transaction – Company gave security to lender over all its shares in subsidiary which owned valuable mining tenement pursuant to bond deed and general security deed – Company received $400,000 pursuant to bond deed – Onerous provisions including events of default and consequences of default – Whether reasonable person in company’s circumstances would not have entered into transaction – Corporations Act 2001 (Cth) ss 588FB, 588FC, 588FE, 588FF. PRACTICE AND PROCEDURE – New ground sought to be argued on appeal which had been abandoned at trial – Leave to rely on new ground refused.

Re Ascot Vale Self Storage Pty Ltd (Receivers and Managers Appointed) [2019] VSC 285

Download 2019 05 03 AVSS v Nom De Plume (No 2) [2019] VSC 285 (Gardiner AsJ).pdf (6.21 MB)

Application pursuant to rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to permanently stay proceeding - Court's inherent jurisdiction - Alternative application pursuant to r.62.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or in exercise of the Court's inherent jurisdiction to dismiss proceeding for failure to give security or for want of prosecution - Alternative application pursuant to s 1335 of the Corporations Act 2001 and r.62.02(l) of the Rules, or ss.45-l(l) or ss.90-15 of Schedule 2 that plaintiffs' claims be stayed until plaintiffs provide security for defendants' costs in an amount and on terms approved by the Court - Proceeding permanently stayed on the ground that it is an abuse of process.

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (2018)

https://financialservices.royalcommission.gov.au/Pages/default.aspx

B.S.B. Mining Pty Ltd v Ranger Resources Pty Ltd [2018] VSC 263

Download B_S_B_MINING_PTY_LTD_v_RANGER_RESOURCES_PTY_.pdf (163.65 KB)

CORPORATIONS LAW – Statutory demand – Application to set aside – Corporations Act 2001 (Cth), s 459J(1)(b) – Some other reason – Proceedings in District Court of Queensland – Claim under guarantee – Plaintiff to this application not a party to the District Court proceeding – Abuse of process – Some other reason why the statutory demand ought to be set aside. GENUINE DISPUTE – Graywinter principle – Was the 21 day affidavit an affidavit in support – Adjournment to augment.

Re Victoria Station Corporation Pty Ltd (admins appt'd) [2018] VSC 163

Download CARRAFA_(in_their_capacity_(as_joint_and_sev.pdf (236 KB)

CORPORATIONS – Administrators appointed to a group of companies – Companies insolvent – Two of the companies were carrying on business as a partnership – Another company acted as an agent in trading on behalf of the partnership – Administrators seeking directions in order to be able to more properly advise the second meeting of creditors of the corporations – Whether the agent company held assets on trust for the partnership – Whether agent held a possessory lien over the assets it held on behalf of the partnership by reason of its right of indemnity against the partnership for debts incurred on behalf of the partnership – Whether lien had been lost by reason of the administrators of the agent corporation selling stock held by the agent on behalf of the partnership – Whether leases partnership assets held on trust for partnership. AGENCY – Existence of agency relationship – Agent’s right of indemnity – Nature of agent’s lien – Whether lien exists over assets of agent company – Effect of sale of assets by the administrators on lien – Whether the possessory lien of the agent extends to a bank account held on trust for the partnership.

In the matter of Legend International Holdings Inc (in liquidation) [2018] VSC 789

Download KORDA v QUEENSLAND PHOSPHATE PTY BC201812230.pdf (784.16 KB)

CORPORATIONS – Corporations Act (Cth) 2001 – Second plaintiff’s (Legend) entry into a Bond Deed and General Security Deed after the commencement by substantial creditors of a proceeding in the Supreme Court of Victoria for orders to enforce a Singapore arbitral award which the High Court of Singapore granted leave to enforce in the same manner as the judgment of that Court – Whether an uncommercial transaction – Section 588FB – Whether an insolvent transaction – Section 588FC – Whether a voidable transaction – Section 588FE(2)&(3) – Whether void as at the time when the Bond Deed and General Security Deed were made – Section 588FF(1)(h). CORPORATIONS – Whether the appointment of receiver of Legend’s shareholding is valid – Whether the appointment of a receiver or manager of Legend’s subsidiary is valid. CORPORATIONS – Whether Share Sale Agreement entered into by receiver consequent upon default under the Bond Deed and General Security Deed was an ‘act done for the purposes of giving effect to the transaction’? – Alternatively whether the Share Sale Agreement is void or unenforceable in any event. CORPORATIONS – Was the good faith defence available? – Section 588FG(2). INSOLVENCY – Was Legend insolvent at the time of entry into the Bond Deed and the General Security Deed or did it become insolvent by reason of such entry? – Section 95A – Section 585 with respect to a Part 5.7 body. CORPORATIONS – Should a foreign debt be considered a ‘debt’ for the purposes of assessing insolvency prior to an order being made under s 8(2) of the International Arbitration Act 1974 (Cth) enforcing the Singaporean arbitral award in Australia. CORPORATIONS – Corporations Act (Cth) 2001 – Winding up in insolvency or on just and equitable grounds – Section 459A – s 461(k).

Queensland Phosphate Pty Ltd v Korda [2017] VSCA 269

Download QUEENSLAND_PHOSPHATE_PTY_LTD_v_KORDA_(as_joi.pdf (177.08 KB)

CONTRACT – Offer and acceptance – Exchange of emails – Whether parties had made binding contract – Whether parties intended to be immediately bound by what they had agreed – Whether agreement contemplated execution of formal deed of settlement and releases. CONTRACT – Appeal – Judge’s finding that parties’ agreement contemplated execution of formal deed of settlement before agreement became binding – Whether Judge’s finding was correct – Judge’s finding correct – Application for leave to appeal granted – Appeal dismissed.

Re Mamounia Pty Ltd (in liq) [2017] VSC 230

Download MAMOUNIA_PTY_LTD_(in_liq)_349SHANE_DEANE_AND.pdf (302.96 KB)

CORPORATIONS – Application by liquidators for directions – Liquidators winding up a company that acted as a trustee carrying on a family restaurant – Company now a bare trustee – Liquidators seek a direction that they are justified in being reimbursed out of the trust assets for the reasonable cost and expenses in conducting investigations and examinations into claims by creditors and possible claims by the company – Held liquidators justified in proceeding on the basis that they are entitled as of right to be reimbursed their reasonable costs and expenses incurred in such investigations and examinations as those activities fall within the salvage principles in Universal Distributing – Section 511 Corporations Act 2001 (Cth).

Mair v Rhodes & Beckett Pty Ltd [2018] VSC 132

Mair v Rhodes & Beckett [2018] VSC 132

Download NELSON_KEITH_ROBERTSON_MAIR_v_RHODES_%26_BEC.pdf (1.08 MB)

CONTRACTS – General contractual principles – Construction and interpretation of contracts – Whether ambiguity required for admission of extrinsic materials – Effect of shareholders agreement on employment agreement. CONTRACTS – Employment agreement – Discharge and breach – Termination of employee or director at common law – Whether termination clause ousts right of termination at common law. CONTRACTS – Employment agreement – Discharge and breach – Repudiation – Whether dismissal was wrongful – Whether wrongful dismissal is repudiation of employment agreement – Whether acceptance of repudiation is effective. EQUITY – Fiduciary obligations – Nature of fiduciary relationship – Consistency with employment agreement – Whether prescriptive equitable duties available – Diversion of principal’s resources – Whether knowledge of extraneous activities is informed consent. EMPLOYMENT LAW – Contract of service – Long service leave entitlements – Long Service Leave Act 1992 (Vic), s 72. STATUTORY OPPRESSION – Oppressive, unfairly prejudicial or unfairly discriminatory conduct towards member – Standing of minority shareholder – Manipulation of books and records – Legitimate expectation of involvement in management and operations – Divestment of assets and profit shifting – Adoption of new marketing strategies – Whether claim is defeated by ‘unfairness’ of the applicants’ conduct – Corporations Act 2001 (Cth), s 232. STATUTORY OPPRESSION – Remedies for oppressive conduct – Order for the purchase of shares – Corporations Act 2001 (Cth), s 233. CONTRACTS – Remedies – Specific performance – Order enforcing the terms of an option – Damages.

Cannon & Anor v Statewide Secured Investments Pty Ltd [2017] FCCA 972

Download JOHN_GEORGE_CANNON_v_STATEWIDE_SECURED_INVES.pdf (128.54 KB)

BANKRUPTCY – Interlocutory application for stay of sequestration order – interlocutory application dismissed.

Atlas Facilities Pty Ltd v Veneziano & Ors [2017] VCC 1569

Entitlement to final judgment pursuant to Order 22 of the County Court General Civil Procedure Rules 2008 (Vic) and/or section 63 of the Civil Procedure Act 2010 (Vic).

Volunteer Fire Brigades Victoria v CFA [2016] VSC 573, Volunteer Fire Brigades Victoria v CFA (No. 2) [2016] VSC 613

Volunteer Fire Brigades Victoria v CFA (No. 2) [2016] VSC 613

Download VOLUNTEER_FIRE_BRIGADES_VICTORIA_INC_v_COUNT.pdf (134.79 KB)

PRACTICE AND PROCEDURE: Discovery of documents – Production for inspection – Civil Procedure Act 2010 (Vic) s 55 – Overarching purpose  Real issues in dispute – Power of Court to limit inspection – Discretion of Court  Cost of discovery and inspection – Applicability of previous judicial finding

Complete Equipment Solutions Pty Ltd v Tesab Engineering Ltd [2016] VSC 253

Download COMPLETE_EQUIPMENT_SOLUTIONS_PTY_LTD_v_TESAB.pdf (179.3 KB)

CORPORATIONS – Corporations Act 2001 (Cth) – Company not registered in Australia – Statutory demand – s 459G Application – Address for service in Victoria designated in paragraph 6 of statutory demand – Failure to serve at that address – Material transmitted by facsimile and email to solicitors for the creditor in Queensland – Service and Execution of Process Act 1992 (Cth) – Whether served within 21 day period or at all.

United Petroleum Franchise Pty Ltd v Gold Fuels Pty Ltd [2016] VCC 292

CONTRACT – Claim for outstanding loan payments in respect of franchise arrangement against franchisee/guarantors – Counterclaim for damages for wrongful termination where franchise agreement terminated for non-payment of electricity – whether franchisee liable for electricity – whether termination was otherwise wrongful – whether there was a breach of franchise agreement concerning the car wash at the site in terms of failure to maintain car wash equipment and/or car wash revenue entitlements and/or payment of commission – whether there was statutory unconscionability under section 21 Australian Consumer Law – quantum of plaintiff’s claim

Verdura v Cooper Real Estate Pty Ltd [2016] FCCA 1239

Liability limited by a scheme approved under Professional Standards legislation. The information referred to above has been supplied by the barrister concerned. Neither Victorian Bar Inc nor the barrister's clerk have independently verified the accuracy or completeness of the information and neither accepts any responsibility in that regard.

Clerk

List A Barristers Pty Ltd

+61 3 9225 8444

info@listabarristers.com.au

Area of Practice

Commercial Law
- Insurance Law & Professional Negligence Law
  - Directors' & Officers' Insurance
- Corporations Law & Securities Law
  - Investments
  - Partnership Disputes
  - ASIC Investigations
  - ASIC Prosecutions
  - Directors' Liabilities
  - Financial Products Regulation
  - Mergers & Acquisitions
  - Shareholder Disputes
  - Managed Investment Schemes
- Bankruptcy Law & Insolvency Law
  - Corporate Insolvency
  - Public Examinations
  - Reconstruction
- Competition Law & Consumer Law
- Banking & Finance
  - Commercial Lending
  - Consumer Lending
  - Mortgages
  - Guarantees
  - Consumer Credit Code
  - Mistaken / Fraudulent Transactions
  - Financial Planners
  - Cheques
  - Managed Investment Schemes
  - Complex Transactions
- Contractual Disputes
- Civil Procedure Law
- Class Actions
- International Commercial Law
Alternative Dispute Resolution (ADR)
- Arbitration
- Mediation
- International Arbitration
- Neutral Evaluation
Public Law & Administrative Law
Inquests, Inquiries, Tribunals & Commissions
International Law

Jurisdictions

All Australian States and Jurisdictions

Wales

Arbitration Qualifications

CIArb (Fellow)