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Directors’ duties/fiduciary duties and knowing receipt

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.

Another Step Into Asia for CommBar

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.

Sports Law round-up

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.

When is a service not ‘professional’?

In 470 St Kilda Road Pty Ltd V Robinson [2013] 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.

Contractual construction principles in sporting selection disputes

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.

Can judgment debts under Security of Payment legislation be enforced?

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.

International arbitration award for foreign company enforced by Federal Court

This case involved enforcement of a foreign award in Australia. Orders were made in aid of enforcement to prevent dissipation of shares in Australian companies owned by the award debtors. The award debtors were not permitted to re-agitate as a ground for resisting enforcement, a ground unsuccessfully agitated by them before the court at the seat of the arbitration to set aside the award.

Discovery and legal professional privilege – all is not lost when disclosure is accidental

In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management & Marketing Pty Ltd & Ors [2013] HCA 46 the High Court has confirmed that accidental disclosure of documents over which legal professional privilege is claimed will not amount to a waiver of such privilege. The appropriate course, in accordance with good practice management, will normally be for the recipient of the documents to return them to the solicitor of the party claiming privilege, and for that party to seek leave to amend its List of Documents. Failing to take such a pragmatic approach and raising technical legal points may in the circumstances be a breach of a party’s and its legal representatives’ obligations under the NSW Civil Procedure Act (and, it follows, the Victorian Civil Procedure Act).