Recent developments in corporations law
Author: Justice Ashley Black
This paper reviews recent developments in
the corporations law, some in 2014 and some in the first half of 2015.
I first consider an appellate and a first
instance decision dealing with liability for knowing involvement in a breach of
fiduciary duty, an important appellate decision dealing with the application of
deeds of indemnity in favour of directors and officers in respect of the costs
of criminal proceedings, and two cases dealing with termination payments to
company officers. I will also note a recent decision dealing with the
requisition of shareholder meetings, in the particular context of capital
reductions.
I then consider several recent decisions in
respect of insolvency, including two first instance decisions concerning the
transfer of shares by a deed administrator; appellate decisions relating to
verification of and setting aside creditor’s statutory demands; a decision of
the High Court concerning the scope of a liquidator’s equitable lien; an
appellate decision taking a broad view of the provisions dealing with
unreasonable director-related transactions in insolvency; and decisions of the
Court of Appeal of the Supreme Court of New South Wales and the High Court
dealing with extensions of time for a liquidator to bring proceedings under
s588FF of the Corporations Act 2001 (Cth).
I also note two decisions of the High Court
dealing with managed investment schemes and further decisions dealing with
continuous disclosure, indirect causation in continuous disclosure and
misleading disclosure claims, and a decision of the High Court, concerning the
complex proportionate liability regime under Pt 7.10 Div 2A of the Corporations
Act. I finally note further developments in financial services regulation,
including in respect of the Future of Financial Advice regime under Pt 7.7A of
the Corporations Act and the possibility of further reforms arising from the
2014 Financial System Inquiry (Murray Inquiry) and the Senate Economics
Committee’s inquiry into the performance of the Australian Securities &
Investments Commission (‘ASIC’).
Fetters on the exercise of unilateral
contractual powers and discretions
Author: Jeffrey Goldberger
Whether the exercise of a unilateral
contractual power or discretion is subject to any constraint represents a
perennial and practical question in Australian contract law.
In an endeavour to control abuse of a
contractual power both the Australian and English courts have developed
techniques which in many respects overlap leading, potentially, to a confusing
taxonomy. As far back as 1947 Lord Greene MR, in dealing with the abuse of
executive power in Associated Provincial Picture Houses Limited v Wednesbury
Corporation1 observed:
‘There have been in the cases expressions
used relating to the sort of things that authorities must not do, not merely in
cases under the Cinematograph Act but, generally speaking, under other cases
where the powers of local authorities came to be considered. I am not sure
myself whether the permissible grounds of attack cannot be defined under a
single head. It has been perhaps a little bit confusing to find a series of
grounds set out. Bad faith, dishonesty — those of course, stand by themselves —
unreasonableness, attention given to extraneous circumstances, disregard of
public policy and things like that have all been referred to, according to the facts
of individual cases, as being matters which are relevant to the question. If
they cannot all be confined under one head, they at any rate, I think, overlap
to a very great extent. For instance, we have heard in this case a great deal
about the meaning of the word “unreasonable”.’
It is true the discretion must be exercised
reasonably. Now what does that mean? Lawyers familiar with the phraseology
commonly used in relation to exercise of statutory discretions often use the
word ‘unreasonable’ in a rather comprehensive sense.
The purpose of this paper is to review
those techniques in light of the most recent case law.
An edited version of the President's address at the CLA's 50th Anniversary dinner
By Norman Donato
page
2
Recent developments in corporations law
By Justice Ashley Black
page
3
Fetters on the exercise of unilateral contractual powers and discretions
By Jeffrey Goldberger
page
16