Update – 2 July 2018

The new Ipso Facto clause stay regime is now in effect

On 1 July 2018 the Federal Government’s new ipso facto clause stay regime became law.  The regime operates to stay the rights of parties to certain contracts to prevent them terminating or modifying the contract if another party becomes insolvent through either voluntary administration, receivership or a scheme of arrangement to avoid winding-up.   The rationale for the new regime is to assist struggling businesses to trade out of their difficulties, successfully restructure or sell the business as a going concern.  Read more here.


Case note – 10 November 2017

What are Unfair Contract Terms for small businesses – Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224

In November 2016 contracts with small businesses were included in the Australian Competition and Consumer Commission’s (ACCC) unfair contract terms regime with the aim of protecting small businesses.  The Federal Court has now delivered its first decision finding that certain specific terms and conditions in a standard form contract contained a number of provisions that were unfair.  Read more here and see our previous update about the new regime here.


Update – 30 August 2017

Proceeding directly against the defendant’s insurer: The new Civil Liability (Third Party Claims Against Insurers) Act (2017)

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (Section 6), which in 2013 the Court of Appeal described as problematic and urged be “repealed altogether or redrafted in an intelligible form…” has now been repealed.  It has been replaced by the Civil Liability (Third Party Claims Against Insurers) Act (2017) (TPCAI Act) which was assented to on 1 June 2017 and came into force the same day. Read more here.


Refresher –  7 June 2017

Professional Liability claims: Standard of Care and Apportionment: Thiess Pty Limited and John Holland Pty Limited v Parsons Brinckerhoff Australia Pty Limited [2016] NSW 173  

A recent building and construction case in the Supreme Court of NSW heard by Justice McDougall has provided a helpful reminder and refresher in relation to the principles associated with the relevant standard of care required of professionals and how the court will apportion liability where there are multiple defendants. Read more here.


Case note – 17 February 2017

Promises, promises: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Limited (2016) 90 ALJR 770

This case concerned restaurant leases in the Melbourne Casino and Entertainment Complex.  Statements by the landlord to the tenant at renewal time to the effect that the tenants would be looked after was held by a majority of the High Court of Australia not to be capable of giving rise to a collateral contract or founding a claim for estoppel.  Read more here.


Update – 31 October 2016

Changes to the unfair contracts regime: contracts with small businesses

From 12 November 2016 contracts with small businesses will be included in the unfair contract terms regime.  As these contracts become subject to the additional unfairness protections, the regime will have significant implications for business-to-business transactions.  Read more here.


Case note – 31 August 2016

Joinder of insurer by third parties where they have a real interest in the policy: CGU Insurance Limited v Blakeley [2016] HCA 2

The High Court of Australia has recently resolved the uncertainty around whether third parties to a contract of insurance may join insurers to proceeding they have brought against defendant insureds regarding coverage issues under that contract of insurance.  In broad terms it has been held that insurers can be joined by such third parties, provided that they have a real interest in the performance of the relevant insurance contract and there is practical utility in the joinder.  Read more here.


Development  15 June  2016

Causation in shareholder class actions: In the wake of the US “fraud on the market” theory

In a significant development on causation and in the first Australian shareholder class action case to do so, the Supreme Court of New South Wales has held that to succeed, plaintiff investors are not required to prove that they directly relied on the misleading conduct or information released by the company and that indirect market-based causation is sufficient.  Read more here.


Case note – 2 May 2016

Professional services exclusion in the context of a D&O Policy: Chubb Insurance Company of Australia Limited v Robinson [2016] FCAFC 17

The Full Court of the Federal Court of Australia has recently upheld the trial judge’s decision in this case in relation to the interpretation of a professional services exclusion contained in a D&O policy.  In doing so, the Court reviewed general principles of commercial contract interpretation, including insurance contracts, and also looked specifically at the nature of what constitutes professional services. Read more here.


Case note – 11 April 2016

D&O major shareholder exclusion: common sense interpretation prevails: OZ Minerals Holdings Pty Ltd v AIG Australia Ltd [2015] VSCA 346

The Victorian Court of Appeal has recently upheld the trial judge’s decision on the interpretation of a major shareholder and board position exclusion in a D&O policy.  In doing so, the Court approved the application of general principles of contractual interpretation and declined to strain the exclusion wording to find ambiguity where such ambiguity did not exist.  The exclusion in question was held to operate to exclude cover and the decision serves as a reminder to carefully review exclusion clauses and understand the limits of cover.  Read more here.


Update – March 2016

The Federal Court Insurance List

As part of the recent Federal Court case management reforms, in March 2016 a new insurance list dedicated to insurance claims will commence to operate.  It is not intended for the list to deal with all insurance disputes.  What will be dealt with are primarily short matters where there are issues of policy interpretation and the application of insurance legislation such as the Insurance Contracts Act, 1984. Read more here.


Case note – 15 February 2016

Signed/Unsigned: Can your lawyer bind you to a contract: Universal Music v Pavlovic [2015] NSWCA 313

Following lengthy settlement negotiations, and just before Christmas, a lawyer sends an email to the opposing side stating that his client “will sign” a proposed settlement agreement.  The client never signs and disclaims the agreement, while the opposing side contends that the agreement was binding by reason of the lawyer’s email indicating it would be signed.  This scenario was recently canvassed by the NSW Court of Appeal in Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313.   Read more here.