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Articles by Toby Boys
Waiver of legal professional privilege in regulatory investigations
In the recent case of ASIC v Noumi Ltd [2024] FCA 349 (ASIC v Noumi), the Federal Court found that company had waived its right to legal professional privilege by voluntarily disclosing a privileged report to ASIC during an investigation. The Court's decision arose out of a peculiar factual scenario, but the case will impact the way that legal professional privilege is dealt with in regulatory investigations.
ACCC cracks down on misleading consumer guarantees and return rights for faulty goods
The Australian Competition & Consumer Commission (ACCC) has recently taken enforcement action against brands such as A&S Labels Pty Ltd (trading as Tiger Mist), Fitbit LLC (Fitbit) and Mazda Australia Pty Ltd (Mazda) for misrepresenting consumer guarantee rights under the Australian Consumer Law (ACL) and misleading consumers in relation to their rights for a refund or replacement where a product is faulty or defective.
ACCC cracks down on misleading consumer guarantees and return rights for faulty goods
The Australian Competition & Consumer Commission (ACCC) has recently taken enforcement action against brands such as A&S Labels Pty Ltd (trading as Tiger Mist), Fitbit LLC (Fitbit) and Mazda Australia Pty Ltd (Mazda) for misrepresenting consumer guarantee rights under the Australian Consumer Law (ACL) and misleading consumers in relation to their rights for a refund or replacement where a product is faulty or defective.
Federal Court decision pierces the corporate veil for breach of director duties - - Australia
The recent case of Australian Securities and Investments Commission v Holista Colltech Ltd [2024] FCA 244 is a good example of the willingness of regulators such as ASIC to use personal liability of directors as a powerful tool in their deterrence efforts.
A plea to parties – Proctor
Events WLSQ sea of purple through city Event details: Women’s Legal Service Queensland Epic Walk for DV fundraiser 24 March 2024 5km loop from New Farm to Teneriffe, Brisbane More than 1200 walkers raised more than $188,000…
A plea to parties: Timely and effective use of mediation in commercial disputes
I've had the pleasure of being a mediator for over 20 years, beginning with my first mediation training in my final year of university. I then worked and trained at the Centre for Effective Dispute Resolution (CEDR) in London and continued mediating after returning to Australia. Over the years, I've witnessed many parties successfully reach mediated settlement agreements. However, there are aspects of the use of mediation that deserve our attention.
Restraint of trade in settlement deeds
A "restraint of trade" clause in a contract seeks to restrain a person from conducting certain types of business or commercial activities. The law says that the restraint is unenforceable, unless it is reasonable for the protection of the legitimate commercial interests of the person trying to enforce it. Disputes often arise about whether a restraint is enforceable or not.
‘Business as usual': Doctrine of frustration in sale of business contracts
A standard sale of business contract requires the seller to continue running the business as usual until completion of the sale. However, during the COVID-19 pandemic, governments of every state brought in a series of public health orders that resulted in unprecedented business interruptions. During that time there were often periods in which carrying on "business as usual" became unlawful.
Received a statutory demand? Consider these three proven grounds to dispute the debt
Statutory demands can be issued by a creditor to a debtor company to demand payment of a debt due and owing. Failure to respond to the demand may result in the debtor company facing a winding-up application based on the company’s presumed insolvency. However, there are several avenues available to a debtor company to apply for a court order setting aside a demand.
Debt and finance disputes on the rise: How your business can balance its litigation risk
Since the start of 2023, we have seen an uptick in the number of new matters and inquiries regarding debts, insolvency, enforcement of securities and distressed assets due to increased pressure on the financial position of the counterparties. Many of those matters arise from a combination of increasing interest rates, ATO enforcement action and general uncertainty in the markets.
High Court rejects ‘peak indebtedness rule’ in unfair preferences case
The High Court’s recent decision in Bryant & Ors v. Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Gunns case) has important implications for liquidators and companies, as it has removed liquidators’ unfair advantage in unfair preference cases. The High Court found that the unfair preference provisions in the Corporations Act 2001 (Cth) (Corporations Act) do not incorporate the “peak indebtedness rule”.
Alternative Dispute Resolution: How can your organisation use ADR clauses to settle disputes?
In this series on dispute resolution as a practical alternative to costly litigation, we previously looked at the issue of dispute system design, which involves representatives of an organisation identifying potential sources of disputes in an organisation and implementing systems to resolve those disputes before they run out of control.
Can a company use a trade mark as parody or satire?
To print this article, all you need is to be registered or login on Mondaq.com. Intellectual property infringement is becoming an increasing risk to organisations. When assessing that risk, organisations should consider the protections under the Copyright Act and Trade Mark Act and the limitations of those protections. A recent Federal Court of Australia Case exposed such limitations.
Queensland Government Bulletin - Legal professional privilege - Litigation, Mediation & Arbitration - Australia
Australia: Queensland Government Bulletin - Legal professional privilege 18 October 2021 Holding Redlich Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
Dispute resolution: A practical alternative to costly litigation
Australia: Dispute resolution: A practical alternative to costly litigation 19 September 2021 Holding Redlich Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
Dispute resolution: How facilitators can simplify commercial negotiations
Australia: Dispute resolution: How facilitators can simplify commercial negotiations 18 September 2021 Holding Redlich Your LinkedIn Connections with the authors To print this article, all you need is to be registered or login on Mondaq.com.
Dispute resolution across international borders: Should we use arbitration?
To print this article, all you need is to be registered or login on Mondaq.com. The use of commercial arbitration by Australian companies is increasing, especially in the context of cross-border business.
Model litigant obligations | Lexology
The Commonwealth government is in a unique position when litigating against private citizens. This is primarily because, as the High Court noted in Thomas v Mowbray (2007) 233 CLR 307 at [260], “the Commonwealth is the best-resourced litigant in the nation”. This power differential means that, in its dealings with citizens, the Commonwealth is held to higher standards than those of private individuals or corporations.
Model litigant obligations - Litigation, Mediation & Arbitration - Australia
To print this article, all you need is to be registered or login on Mondaq.com. The various levels of government are in a unique position when litigating against private citizens. This is primarily because, as the High Court noted in Thomas v Mowbray (2007) 233 CLR 307 at [260], "the Commonwealth is the best-resourced litigant in the nation".
A guide to managing large and complex disputes | Lexology
Commercial disputes, regulatory investigations and royal commissions have always been complex and difficult at the best of times, but large cases in the modern era take those difficulties to the next level. That’s usually because of the importance to the parties, the complexity of the factual and legal issues, rapidly moving advances in technology and the increasingly large volumes of electronic documents involved.
Force majeure contractual clauses and COVID-19 – Is the pandemic enough? - Coronavirus (COVID-19) - Australia
To print this article, all you need is to be registered or login on Mondaq.com. As discussed in our previous article here, the question as to whether COVID-19 is an event that will enliven a contractual force majeure clause will depend on the specific drafting of the clause. Further, the contracting network to which you are a party in your particular sector may define whether you are seeking to invoke or challenge a declaration of force majeure, as discussed in our subsequent article here.
Shareholder disputes: How to avoid an ugly corporate divorce
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