Thursday, 6 October 2016

Masters of their own destiny - Court upholds arbitration agreement between Woolworths and Lowe's

The recent decision of the Federal Court in WDR Delaware Corporation v Hydrox Holdings Pty Ltd1 affirms the courts’ willingness to uphold arbitration agreements, consistent with Australia’s international convention obligations, judicial recognition of the efficiency of arbitration, and Australia’s reputation as a sophisticated jurisdiction in which to conduct arbitration.

Wednesday, 17 August 2016

Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129

Case note

In the recent Supreme Court of Queensland decision of Santos Ltd v Fluor Australia Pty Ltd [1], Justice Douglas endorsed the courts’ positive approach to giving effect to alternative dispute resolution (ADR) clauses even where one party seeks a litigated outcome.

In this case, Santos contracted Fluor to perform work on its GLNG Project near Gladstone.  Santos became concerned about the amount claimed by Fluor under the contract, which exceeded the budget estimate by over $1.85 billion. 

Thursday, 8 October 2015

Recognition and enforcement of foreign judgments in Australia - Part 3

Enforcement of the foreign judgment

In our previous posts we examined the two ways to have a foreign judgment recognised in Australia: under the Foreign Judgments Act 1991 (Cth) and under the common law.  Once the foreign judgment is recognised, the next step is to get the money owing under the judgment.

In this post we will explore the steps the judgment creditor may take to enforce the judgment.

Wednesday, 16 September 2015

Recognition and enforcement of foreign judgments in Australia - Part 2

Recognition under the common law

In our previous post, we examined the process for recognising foreign judgments in Australia under the Foreign Judgments Act 1991 (Cth) (Act).  While this is the easiest way to get a foreign judgment registered in Australia, it is only available for certain judgments. 

For judgments that are not registrable under the Act, a judgment creditor must have the judgment recognised under the common law.  In this post, we examine that process and the positions of the judgment creditor (the person enforcing the judgment) and the judgment debtor (the person against whom the judgment is being enforced).

Thursday, 27 August 2015

Recognition and enforcement of foreign judgments in Australia

Registration of foreign judgments

For a plaintiff seeking to enforce a judgment, it is not uncommon for a defendant’s assets to be spread across the globe, creating both opportunities and problems.  The opportunity lies in accessing potential sources of assets to satisfy the judgment.  The problem is that a company or person might have no assets in the plaintiff’s home jurisdiction, requiring the judgment to be enforced overseas.

The steps involved in accessing a defendant’s Australian assets to satisfy the judgment are recognition and enforcement.  We will explore these steps further in a series of upcoming posts.

In this first post we look at one method of recognition: registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (Act). 

Monday, 10 August 2015

Impacts of a sluggish court system

Greece is in trouble.  It is being pressured to implement a number of reforms as part of negotiations for various forms of debt relief.

One of those reforms is an overhaul of its courts system, which is viewed as being slow, inefficient, and a handbrake on commerce.  For example, the World Bank reported this year that it took on average over four years to enforce a contract in Greece (compared to an OECD average of 1.5 years).

Does Australia have anything to worry about?

Wednesday, 29 July 2015

Protecting the little guy: unfair contract terms to apply to small businesses

In April 2015, the Federal Government released draft legislation titled the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 (Bill), which if enacted, will extend the consumer unfair standard contract term protections to small businesses. 

The legislation proposes to amend the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act), and the Competition and Consumer Act 2010 (Cth) (CCA) and is anticipated to commence in early 2016. 

The current laws under the ASIC Act and CCA only apply to protect consumers (usually individuals) from unfair contract terms, and are said to fail to address the vulnerability of small businesses engaging in commercial transactions.  The Explanatory Material to the Bill states that small businesses are not entering into contracts due to a lack of confidence in understanding and negotiating contract terms and the costs of obtaining legal advice, often resulting in the businesses missing out on opportunities.