Insights

Court approval of litigation funding agreements for liquidators

Re Ascot Vale Self-Storage Centre Pty Ltd (In Liq) - It is a common occurrence for a liquidator of a company to enter into a funding agreement with a third party, for the purpose of the company

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Implied term of trust and confidence - recognised by full Federal Court for the first time

In an important appellate decision, on 6 August 2013 the majority of the Full Court of the Federal Court upheld, for the first time, a damages award for breach of an implied term of mutual trust...

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Prior dealings and contractual terms

The WA Court of Appeal recently revisited the incorporation of contractual terms through prior dealings in La Rosa v Nudrill Pty Ltd [2013] WASCA 18. The decision indicates that there are no...

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What happens when the court disagrees with the penalty you agreed with the regulator?

The common practice of courts endorsing negotiated settlements involving 'agreed penalties' between private parties and prosecuting regulators was the subject of judicial criticism in the recent

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Australian Foreign Bribery Review 2012 - what does 2013 herald?

The last 12 months saw a flourish of activity in the foreign bribery space. 2013 is likely to see an increasing focus on cross-border corruption investigations, closer cooperation between...

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High Court decision on share buy-backs and share capital accounts

On 5 December 2012, the High Court of Australia gave its judgment in Commissioner of Taxation v Consolidated Media Holdings Ltd...

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Expert determination - what are the choices?

Dispute resolution clauses in contracts often include an expert determination mechanism to resolve some or all disputes that might arise. Parties need to think about whether expert determination is

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Metricon misleads and misses the mark

The Australian Competition and Consumer Commission (ACCC) took issue with representations made by home builder Metricon Homes Qld Pty Ltd (Metricon) in advertisements to consumers. While the case

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Paying the price for price fixing

US COURT IMPOSES LARGEST EVER FINE AND JAILS EXECUTIVES - ACCC, DPP AND AUSTRALIAN COURTS LIKELY TO FOLLOW SUIT On 20 September 2012, a US District Court Judge sentenced AU Optronics (AUO), an

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ASIC v Forrest and Fortescue [2012] HCA 39 in the High Court

ASIC's action against Andrew Forrest and Fortescue Metals Group (FMG) is now over. The result in the High Court was an emphatic victory for Forrest and FMG after 6 years of hard fought...

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The Fortescue Decision in the High Court

ASIC has had a difficult and ultimately unsuccessful pursuit of Fortescue Metals Group Limited (FMG) and its former Managing Director Andrew Forrest...

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High Court expands operation of the doctrine of penalties

In Andrews v ANZ, the High Court found that certain bank fees charged to the bank's customers were not prevented from being characterised as penalties by reason of liability to pay those fees being

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Appeal rights under the new uniform Commercial Arbitration Law

This article discusses the appeal rights of parties under the new uniform commercial arbitration law with specific reference to the Commercial Arbitration Act 2011 (SA) which commenced operation...

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Discovery take second chair in NSW Supreme Court

A new Practice Note governing discovery and disclosure processes in the Equity Division of the Supreme Court of New South Wales commenced on 26 March 2012. In the absence of exceptional...

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International arbitration clauses in commercial contracts

International arbitration is an increasingly popular means of resolving disputes in contracts involving cross-border commercial transactions, primarily due to the ease with which arbitral awards...

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The Stanwell Decision

The Federal Court recently released its decision in respect of the AER's action against Stanwell Corporation for breach of the rebidding provisions of the National Electricity...

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Legal professional privilege: the risks with intra-corporate group legal advice

A recent Federal Court judgment in the long running Lehman Bros cdo battle royale, Wingecarribee Shire Council & Ors v Lehman Bros Aus Limited (in liq) 1, looked at, in part, the risks that arise...

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Nominating an independent expert - is your dispute resolution clause still effective?

Many commercial contracts provide for an independent expert to resolve disputes of a financial nature. In drafting these dispute resolution clauses it is common to provide that if the parties...

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ASX Listing Rule Amendments: governance issues, dividend announcements and share purchase plans

ASX has amended several Listing Rules; this article reviews the amendments and how they relate to listed...

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Going above and beyond: s 439A report leads to removal of liquidators

In Independent Cement and Lime Pty Ltd v Brick and Block Company Ltd (in liquidation) (receivers & managers appointed) [2010] FCA 352, Justice Finkelstein considered the duty of voluntary...

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