Yearly Archives: 2018

Isaac v Dargan Financial Pty Ltd ATF The Dargan Financial Discretionary Trust (ABN 68 702 047 521) (trading under the name of Home Loan Experts) [2018] NSWCA 163

Building a business and client-database is no easy task.  When an employee or contractor leaves, or threatens to leave, the names and contact details of clients assume supreme value. The fear is that this confidential information will fall into the hands of a competitor or the departing employee or contractor will use it for their own gain.

The first question is whether there were appropriate safeguards for this information during the employment or contractual relationship: for example, were client details password-protected and only imparted to employees or subcontractors under an express obligation of confidence, such as a confidentiality agreement?  Were the employees only allowed to store client information on company-issued mobile phones or had their client relationships become enmeshed in their social media?

However, what happens if there is a dispute and these client lists are attached to an Affidavit, putting them into the public domain and into the hands of a competitor?  A recent decision of the New South Wales Court of Appeal demonstrates that simply attaching the client details to an Affidavit is […]

Mathieson v Lawson [2018] QSC 154

The defendants had brought an application to dismiss the plaintiff’s claim for want of prosecution. Leave had been granted nunc pro tunc to the plaintiff to bring derivative proceedings on behalf of the seventh defendant which was in liquidation at the time. The other defendants were not joined as parties to that proceeding.

The plaintiff sought to rely on the order made in that proceeding against the seventh defendant as a “step in the proceeding” within the UCPR contending that the order served the purpose of conferring leave to proceed for the purpose of both s 237 and s 500 of the Corporations Act, and further for the purpose of UCPR 371(2).

The court rejected that contention, concluding that an order made in a differently constituted proceeding could not be a “step in the proceedings”.

Perrine v Carrello [2017] WASCA 151

THE COURT OF APPEAL in Western Australia recently upheld a trial judge’s decision that a holding company was insolvent, and that the Directors, Mr and Mrs Perrine, were liable for insolvent trading.

In this case there was a flexible payment arrangement between the holding company, Perrinepod, and its subsidiary company, Perrine Architecture. This flexible arrangement meant that payments on the running account were only made by Perrinepod to Perrine Architecture as and when Perrinepod had funds to make a payment.

The Directors appealed on the grounds that the specific payment arrangement meant that the debts owed to Perrine Architecture had not fallen due and payable, and thus Perrine Architecture had not actually suffered a loss, and the trial judge erred in finding otherwise.

The appeal was dismissed (see [58]-[61]).

The evidence was that the debt was repayable when (notably not ‘if and when’) the company was in a position to pay it; hence the company was insolvent.

See also Hussain v CSR Building Products [2016] FCA 392, and our recent blog post on that case here.

To access the full judgment, follow this link: http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2017WASCA0151/%24FILE/2017WASCA0151.pdf

Catchwords:

• Insolvent
• Insolvent trading
• As and when debt repayable
• If and when debt repayable
• Solvent