Roslyn Kaye – The New South Wales Court of Appeal allowed this appeal brought by the ANZ bank. The trial judge had found that the bank was not entitled to rely upon an assumption that a forged guarantee document had been duly executed. The Court of Appeal held that the bank was entitled to rely upon the assumptions in sections 129(4) and (5) of the Corporations Act 2001 that the guarantee had been duly executed, and accordingly the guarantee was enforceable against the respondent company.
This case decided that VCAT is not a “court” for the purposes of the Commercial Arbitration Act 2011 (“CAA”) and therefore is not obliged to refer parties to arbitration in accordance with section 8 of the CAA where the matter before VCAT is the subject of an arbitration agreement.
Roslyn Kaye – In this appeal, the New South Wales Court of Appeal: (a) dismissed an appeal by two company directors who were found by the trial judge to have breached their directors’ duties; and (b) upheld an appeal by an individual alleged to have been in knowing receipt of monies transferred to her by the directors in breach of their fiduciary duties.
Dr Josh Wilson SC and William Lye – In our capacity as heads of the Asia Practice Section of CommBar, it gives us great pleasure to report that our endeavours to crack the Asian market on behalf CommBar have again bore fruit. This time we have successfully opened the door for CommBar’s entry into Malaysia.
Branch franchisees fail in a class action against the Bank of Queensland – Andrew Kirby and Kieran Hickie
The Bank of Queensland (BOQ) has recently won a large class action proceeding in the New South Wales Supreme Court. The Bank successfully defended claims of misleading and deceptive conduct, unconscionable conduct and negligence brought by franchisees who claimed loss and damage caused by the failure of their franchise branches.
Monitor’s Report – The Australian Sports Anti-Doping Authority (‘ASADA’) investigation into the AFL and NRL appears to be continuing, despite the two codes almost commencing their next season since the investigation began. It is unclear what the outcome of this will be, and when an outcome will be achieved. Former Federal Court Judge Garry Downes has been appointed to review the ASADA investigation, including to determine whether charges could be laid in respect of alleged infractions.
In 470 St Kilda Road Pty Ltd V Robinson  FCA 1420 Kenny J considered the ‘professional services’ exclusion in a directors’ and officers’ liability insurance contract. The case provides a useful review of the authorities dealing with this exclusion, and is relevant in respect of interpreting exclusion clauses in insurance contracts more generally.
In this matter Mr Holmes QC, sitting as a sole arbitrator in the Appeal Arbitration Division of the Court of Arbitration for Sport (“CAS”), was called upon to determine the proper construction of the Nomination Criteria relevant to athletes seeking to represent Australia in the sport of Alpine skiing at the 2014 Olympic Winter Games. Arbitrator Holmes QC applied contractual construction principles to construe the relevant criteria, and dismissed the proceeding.
The NSW Security of Payment Act provides that an adjudication certificate may be filed in court as a judgment for a debt and may be enforced accordingly. A party argued that this enforcement regime, which does not allow judicial scrutiny of the debt, conflicts with federal law and is unlawful. By a 2-1 majority, the Full Court of the Federal Court found no conflict.
A claimant in an expert determination challenged an interlocutory decision of the expert to refuse the claimant leave to amend its claim. After discussing the nature and purpose of expert determination, and construing the contract between the parties and the expert, the Court held that the expert did not err.
In 2012 the ACCC successfully took Flight Centre to court for attempting to collude with three international airlines. This case is a very rare example of the ACCC making use of the law of attempted collusion (rather than actual collusion).
The High Court explained the standard of reasons required where a Medical Panel gives its opinion on a medical question referred to it.
A majority of the High Court held that the provisions creating a mandatory minimum sentence of five years’ imprisonment for those convicted of an aggravated form of “people smuggling” were valid.
In a land mark judgment handed down on 5 February 2014 by the Federal Court, Gordon J held that late payment fees charged by the ANZ Bank infringed the doctrine of penalties.