McCarthy v Camil Holdings Pty Ltd

[2016] VSCA 235

Victorian Court of Appeal5 October 2016

Ratio Decidendi

A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law

Quick Take

The exception in s 131(2)(f) of the Evidence Act 2008 does not extend to communications aimed at resolving a further and distinct dispute from the dispute in respect of which there had been a negotiated settlement, even where the parties and subject matter are closely connected. 'The dispute' in s 131(1)(a) and s 131(2)(f) refers to the same dispute. The case also serves as a cautionary example about the obligation under s 24 of the Civil Procedure Act 2010 to ensure costs are proportionate to the amount in dispute.

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Linked Principles

Legal principles extracted from this case

01A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law
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03
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Case Details

Citation[2016] VSCA 235

CourtVSCA

JurisdictionVic

Decision Date5 October 2016

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Judgment

Authorities Cited9›

Cases considered by McCarthy v Camil Holdings Pty Ltd

Referred to (9)

Melbourne City Investments Pty Ltd v UGL Limited [2017] VSCA 128 McCarthy v Camil Holdings Pty Ltd [2016] VSCA 235 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 [2015] VSC 430 Kennedy v Shire of Campaspe [2015] VSCA 47

Subsequent Judicial Consideration1›

Cases that have considered McCarthy v Camil Holdings Pty Ltd

Referred to (1)

McCarthy v Camil Holdings Pty Ltd [2016] VSCA 235

Judicial Consideration (Chronological)

McCarthy v Camil Holdings Pty Ltd [2016] VSCA 235Referred to

Where a guarantor seeks to set aside a guarantee on the ground of unconscionable conduct by the lender, the guarantor must establish both that they were under a special disadvantage and that the lender knew or ought to have known of that disadvantage

Where a guarantor seeks to set aside a guarantee on the ground of unconscionable conduct by the lender, the guarantor must establish both that they were under a special disadvantage and that the lender knew or ought to have known of that disadvantage.

McCarthy v Camil Holdings Pty Ltd at [30]

On an application to set aside a statutory demand under section 459G of the Corporations Act 2001 (Cth), the Wallaroo-Yorke rule for statutory demands requires the applicant to identify with specificity the offsetting claim relied upon, supported by evidence sufficient to demonstrate a genuine triable issue

On an application to set aside a statutory demand under section 459G of the Corporations Act 2001 (Cth), the Wallaroo-Yorke rule for statutory demands requires the applicant to identify with specificity the offsetting claim relied upon, supported by evidence sufficient to demonstrate a genuine triable issue.

McCarthy v Camil Holdings Pty Ltd at [37]