An asset preservation order is a class of freezing order made by a Court usually without notice to the respondent or defendant (Exparte) for the purpose of preventing the frustration or inhibition of the Courts processes. The need for an asset preservation order arises when there is danger that a judgment (or prospective judgement) made in favour of the party initiating the proceedings would go wholly or partly unsatisfied because the respondent may dispose of, deal with or diminish the value of its assets. [Read more…]
Litigation & Disputes
False and misleading representations by business – sections 29(1)(a)-(n) of the ACL
Where a business strays beyond mere “sales puffery” in promoting its goods or services and “crosses the line” in to the realm of deception, depending on the nature of the statements sections 29(1)(a)-(n) of Schedule 2 to the Competition and Consumer Act 2010 (Cth)(ACL) may be able to be used as a sword to hold the errant business to account. Sections 29(1)(a)-(n) of the ACL contain a wide range of prohibitions relating to representations made about goods or services by businesses as shown below: [Read more…]
Overview of the illegal phoenixing regime
The Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (Amending Act) came into force on 18 February 2020 and was designed to prevent illegal phoenixing activity. The Amending Act introduced reforms such as creditor-defeating disposition provisions to combat phoenixing activity. Additional provisions amending the Corporations Act 2001 (Cth) were aimed to encourage accountability by preventing the resignation of directors when there is no replacement director in place. [Read more…]
Misleading and deceptive conduct – Invisalign v SmileDirectClub
The case of Invisalign Australia Pty Limited v SmileDirectClub LLC [2023] FCA 395 (Invisalign v SDC) involved two (2) companies that offer what’s referred to as the “clear aligner teeth straightening treatment” (Clear Aligner). On 23 December 2021, Invisalign Australia Pty Limited (Invisalign) commenced proceedings against SmileDirectClub Australia Pty Ltd and its US parent company (together, SDC) in the Federal Court of Australia. It was alleged that SDC had engaged in false, misleading or deceptive conduct in relation to representations made in promoting the Clear Aligner.
ASIC commences legal proceedings alleged greenwasher
The Australian Securities and Investment Commission (ASIC) announced it has commenced legal proceedings in the Federal Court of Australia against Mercer Superannuation (Australia) Limited ACN 004 717 533 (Mercer) alleging ‘greenwashing’. ASIC alleges Mercer made misleading statements of the sustainable nature of some of their investment options. The proceedings commenced in the Victorian Registry of the Federal Court of Australia on 27 February 2023. [Read more…]
High Court asset protection 101 – buy property in the name of spouse
The decision of the High Court of Australia in Bosanac v Commissioner of Taxation [2022] HCA 34 (Bosanac) reaffirms the viability of protecting real property assets by registering them in the name of a spouse. [Read more…]
Review of QBCC decisions – Part 6
Under the Queensland Building and Construction Commission Act 1991 (the Act) the Queensland Building and Construction Commission (QBCC) is empowered to make a variety of decisions such as but not limited to issuing to a builder a notice to rectify defective domestic building work.
Review of QBCC decisions – Part 5
Under the Queensland Building and Construction Commission Act 1991 (the Act) the Queensland Building and Construction Commission (QBCC) is empowered to make a variety of decisions such as but not limited to issuing to a builder a notice to rectify defective domestic building work.
The Act sets out processes that enable an aggrieved stakeholder to have a decision reviewed internally by QBCC, and / or if deemed appropriate, externally by the Queensland Civil and Administrative Tribunal (QCAT).
What is standard discovery in the federal court?
In the Federal Court of Australia, a party may be ordered to provide “standard discovery”. Orders of this nature imposes a broad obligation on a litigant to disclose documents which are relevant to issues raised in the dispute.