Enforcing restraint clauses: how competitive must the competitive be? |
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Author :
Kate Williams
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Employment contracts of key executives and senior managers typically include a clause restraining them from working for, providing services to or being involved in the business of a competitor of the employer for a specified period of time after they cease working for the employer and within a specified geographical area.
The contract usually defines the business of the employer in very broad terms to cover every aspect of the business known to the drafter, including some lines of business that the employer hopes to venture into in the future.
It is a common scenario that, when the employment relationship comes to an end, the employer thinks that the clause prevents the former employee from working for any organisation that might compete with the 'vision' of the employer's business described in the contract. This is not so. |
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Penalty clauses and what would the High Court have made of Interstar Wholesale Finance Pty Ltd v Integral Home Loans? |
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Author :
Dr Elisabeth Peden
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In the case of Interstar, special leave was granted to the High Court in May 2009. The matter then settled and deprived Australian contract law of a determination of some interesting issues relating to the law of penalties. Nevertheless, the differences in the judgments of the trail judge, Justice Brereton, and the NSW Court of Appeal provide an interesting backdrop for a consideration of the current state of the law applicable to the liquidated damages/penalties distinction.
A number of questions might be asked. Does the law of penalties apply beyond cases of required payments following breach? Does the law of relief against forfeiture apply in cases where a party exercises an express right to terminate that has the effect of disentitling the other party to a right to a trailing commission? What is the current state of the law in relation to penalties in Australian law?
This paper outlines the factual dispute in Interstar and indicates the approach adopted and the result found by Brereton J and compares the approach taken by the NSW Court of Appeal. It further considers of whether that decision accords with High Court authority. |
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What is a receiver's duty when selling assets? |
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Author :
Richard Fisher AM
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Just as an old song raised the curiosity of a 'pub with no beer', receivers have been left by Parliament to ponder what superficially at least, is the oddity of selling property which has no market value. So much and a little more was the result of the introduction into Australia's company law of the statement of a receiver's duty when exercising a power of sale. After more than 15 years of its operation, there is now a sufficient body of decisions concerned with the statement of that duty both to better understand its content and to explore its practical implications for receivers when exercising what might be described, at least in the case of receivers appointed out of court, as their ultimate power. |
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Cross border insolvency of banks and insurance companies |
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Author :
John Martin
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This paper will commence with a brief outline of the legal regime in Australia that addresses the consequences of failure of a bank or insurer. That outline will provide the foundation for an examination of the cross border aspects of addressing the insolvency, where the operations of the bank or insurer have crossed national boundaries. |
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Lapse of offers: what is the focus? |
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Author :
Maree Chetwin
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Hot Not every change in circumstances will cause the offer to lapse. The issue which faced the Supreme Court in the New Zealand case Dysart Timbers Ltd v Nielsen was what level of the change in circumstances was required before it could be held that an offer had lapsed. The Supreme Court considered authorities in other jurisdictions but was faced with a dearth of authority and this resulted in differing conclusions not only as to the legal analysis but also as to the outcome on the facts. The same legal analysis was adopted by four of the five judges, but the majority decision was the combination of two of those four and that of the dissenting judge. The issue in its factual context highlights the difficulty. |
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