A director’s duty to act in the best interests of the company: MG Corrosion Consultants Pty Ltd v Gilmour

The case of MG Corrosion Consultants Pty Ltd v Gilmour [2014] FCA 990 involved allegations of a director authorising unnecessary and excessive payments that caused detriment to a company and its shareholders.  This case serves as a reminder to directors of the importance of adhering to their duties under the Corporations Act 2001 (Cth) (Corporations Act).

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Restraint of trade clauses in commercial contracts

A restraint of trade occurs where one party (Covenantor) agrees with another party (Covenantee) to restrict their liberty in the future to carry on trade with other persons who are not parties to the contract see: Petrofina (Gt Britain) Ltd v Martin [1966] Ch 146 at 180.

Restraints of trade clauses are prima facie void, however, the presumption can be rebutted if the restraint is justified because it is reasonable in the circumstances.    Note that there is a significant divide between restraints in commercial contracts and those in employment contract with the latter being widely accepted as only being enforceable for a far shorter period of time. [Read more…]

The legal relationship of agency

The importance of establishing whether a legal relationship of agency exists, and if so, to what extent, can be critical when ascertaining whether a person had authority to enter into an agreement on behalf of another person or entity.  The precise legal nature of the relationship may be important to the parties if either are attempting to enforce their rights under an agreement between them. [Read more…]

The consequences of inaction in litigation in Queensland Courts

Litigation in the Queensland Court system, as governed by the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), is largely driven by, and conducted at the pace of, the parties themselves.  However, there remain consequences where the parties fail to take any steps in the matter for extended periods of time. [Read more…]

Quantification of losses for breach of contract

A breach of contract can broadly be described as the failure to comply with any term of an agreement; some examples include a refusal to perform, incomplete performance, delay or unlawful termination.  Once it has been determined that a breach of contract has in fact occurred, the next question is how to determine the resulting loss and whether it can be recovered from the responsible party.  Whilst there is no hard and fast rule when attempting to quantify losses, there are certain principles which form part of the process of  assessing damages caused by a breach of contract.

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Interlocutory injunctions in patent disputes

An injunction is a Court order directing a person or entity to do a specific thing or refrain from doing something.  Whilst an injunction in itself can amount to final relief in litigious matters, it can also be sought on an interlocutory or temporary basis (Interlocutory Injunction).  This applies where a temporary remedy is sought to maintain the status quo until the larger legal issues can be heard at trial.

In matters relating to the infringement of a patent, an injunction may be sought by the patent owner (Applicant) to stop a defendant (Respondent) from doing the acts the patent owner alleges infringe the patent, until the Court has had the opportunity to determine whether or not the patent has been infringed.  In this article we consider Interlocutory Injunctions in patent matters and how the tests differ from non-patent matters. [Read more…]

Offers to settle: Federal Court Rules c.f. Calderbank offers

In litigation, an offer to settle is an offer by one party to the other to settle the dispute out of Court.  There are numerous advantages to settling a matter out of Court, including reduced legal fees, finality of proceedings and confidentiality of result.  A key issue for litigants when making or receiving an offer to settle is to understand the potential legal costs consequences of rejecting the offer.  In this article, we consider offers to settle in the Federal Court of Australia under both the common law and the Federal Court Rules 2011 (Cth) (Rules).

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What is a Mareva Order?

A Mareva order (Mareva Order), also known as a freezing order or asset protection order, is a special type of interlocutory injunction which restrains a defendant from dealing with the whole or part of their assets pending the outcome of legal proceedings.  In preventing a defendant from disposing of their assets in a way which may deprive the plaintiff of an effective remedy, Mareva Orders are a tool to prevent an abuse of court processes and protect the proper administration of justice.  In Queensland, Mareva Orders are dealt with in Chapter 8 Part 2 Division 2 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). [Read more…]

Discovery in the Federal Court of Australia

On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery.  The Federal Court does not require parties to provide disclosure as a matter of course.  Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission.  This process is known as discovery.  The Rules are to be read in conjunction with the associated Federal Court practice notes, relevantly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1).  In this article, we consider the process of seeking discovery of documents in a matter before the Federal Court. [Read more…]

The importance of evidence and its ubiquity

A fundamental step when preparing for any litigious matter is to gather evidence to support your legal position.  In Queensland, the rules of evidence are located in a number of pieces of legislation, together with a large body of case law.  The focus of this article is to provide a brief overview of evidence and why it is crucial for a party to any civil litigation matter to devote adequate resources to locating it. [Read more…]

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