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Federal Court judgments

Every Issue

Cite as: December 2013 87 (12) LIJ, p.65

Corporations

Winding up – insolvency – standing of creditor – cross claim not genuine

In First Equilibrium Pty Limited v Bluestone Property Services Pty Limited (in liq) [2013] FCAFC 108 (18 September 2013) a Full Court concluded the primary judge had not erred in finding the company’s cross-claim against the creditor was not bona fide so that the creditor of the company had standing to seek winding up under s459P(1)(b) of the Corporations Act 2001 (Cth).

Environmental law

Approval – relevant matters – state conditions that may vary to respond to approval

In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111 (8 October 2013) s134(4)(a) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) required the Minister, in deciding whether to attach a condition to the approval of a project (viz the expansion of the Olympic Dam in South Australia), to consider “any relevant conditions that have been imposed . . . under a law of the State . . . on the taking of the action . . .”. A Full Court concluded the Minister had considered the appropriate state conditions and the fact that they may respond to the development as approved did not make the approval invalid. The court rejected a submission that the totality of the conditions imposed rendered the approval uncertain within s5(2) of the Administrative Decisions (Judicial Review) Act 1977.

Taxation

GST – sale of reversion to lessor – whether continuing supply of lease

In MBI Properties Pty Ltd v Commissioner of Taxation [2013] FCAFC 112 (18 October 2013) after leasing the freehold the lessor purchased the reversion. A Full Court considered whether there was a continuing “supply” of the lease under s135-5 of the A New Tax System (GST) Act 1999 (Cth) after the lessor purchased the reversion.

Trade marks

Validity – mark using foreign words

In Modena Trading Pty Ltd v Cantarella Bros Pty Ltd [2013] FCAFC 110 (30 September 2013) a Full Court considered the validity of trade marks based on the distinctiveness of the Italian words for “‘gold” (oro) and “five star” (cinque stelle) in relation to coffee and coffee products.

Trade practices

Passing-off – delay – effect on costs

In Knott Investments v Winnebago Industries, Inc (No 2) [2013] FCAFC 117 (17 October 2013) a Full Court concluded that the failure of the respondent to protect its reputation in the travelling home market over 25 years while the appellant built up a business using its products in Australia, meant that the successful respondent would only receive 75 per cent of its costs.



THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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