Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (Court of Appeal Proceedings No 40249 of 2007)
We acted for members of the Macquarie Group in an appeal to the NSW Court of Appeal in relation to the collapse of New Cap Reinsurance Corporation Holdings Limited. The proceedings were complex and involved 11 separately represented groups of parties, including the company’s professional advisers and directors and officers.
The appeal concerned significant and novel legal issues arising under the Corporations Act, that have particular importance in the context of capital raisings. Those issues included the test for establishing causation of loss for misleading or deceptive conduct and the effect of disclaimers used in prospectuses and roadshow presentations.
The Macquarie parties were successful in defending the appeal. By drawing upon a depth of expertise in large and complex corporate law litigation, we were able to effectively prepare the Macquarie parties’ defence of the appeal and respond to matters as they arose during the course of the proceedings, often within very short timeframes.
Lead partner: Ashley Black.
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British Airways plc - class actions
Mallesons acts for British Airways in relation to two class actions in the Federal Court of Australia.
The first class action concerns allegations that British Airways and seven other international airlines unlawfully conspired to fix the fuel surcharge applied to air cargo. Mallesons was successful in having the claim struck out by Tracey J in the Federal Court. A further strike application is pending. These successful strike-out motions have been very important in defining and limiting the relevant market and class.
In the second action, a class action was commenced against six carriers, the claims being based on a separate contract between travel agents and each of the respondents for commission payable to travel agents in relation to the fuel surcharge. BA challenged the class action in this form and ultimately the dispute was resolved on the basis that a related action against another airline would first be determined as a test case.
Lead partner: Karen Coleman.
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Climate Change
We are acting for groups of residents on two sections of the NSW coastline which are at risk of erosion by sea level rises. The duties and liabilities of councils and government in this area is one of the cutting edge areas of law with which the courts may soon have to grapple.
Lead partner: Karen Coleman.
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BHP Billiton Tax Dispute
This matter was one of Australia's biggest tax disputes and relates to BHPB's multi-faceted dispute with the ATO over the deductibility of expenditure and the financing costs of multi billion dollar investments which went bad around 2000.
We acted for BHP Billiton, winning the case against the Commissioner of Taxation worth $2 billion (including all penalties), March 2009.
We have brought over a dozen proceedings in the Federal Court to challenge tax assessments and other ATO decisions. It is ground breaking litigation because it covers three of the most complex areas of tax law:
- project financing which the ATO wants to treat as limited recourse
- tax loss transfer rights
- deductions for in-house finance companies
Mallesons has a team of 5 tax litigation specialists and 2 paralegals working on the cases.
Lead partner: Michael Clough (Tax).
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Defence of claim by fund manager against large travel and leisure group
We acted for certain companies in a travel and leisure group defending a claim brought by a fund manager which had subscribed for bonds issued by the former parent company of the travel and leisure group.
The claim involved some novel, and as yet unresolved, issues regarding attribution of knowledge and the question of accessorial liability under the Trade Practices Act in circumstances where the alleged accessory remains silent. The matter was particularly significant for our clients because a court order requiring the grant of the guarantees sought would have compromised their ability to conduct their day-to-day business.
Mallesons achieved an excellent result for its clients through an aggressive defence of the proceedings, including two successful attempts to have parts of the claim struck out. The firm's expertise in debt and equity markets, and including in relation to matters such as short selling and the impact of the issue of conversion notices on share price, was also a key factor in the result achieved for the client.
The case involved the review and preparation of a substantial amount of lay and expert evidence on an expedited basis. Mallesons tailored the team involved as required in order to conduct the defence of the proceedings in a timely manner.
Lead partner: Roger Forbes.
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Canberra Airport - DFO Dispute
In a series of actions pursued by Canberra Airport it opposed a proposal by a competitor to establish a retail factory outlet shopping centre in the ACT on land sold to DFO by the ACT, in opposition to a similar facility established at the Airport.
Mallesons was involved not merely in conducting court and tribunal processes challenging the decisions, but also in assisting the client in preparing submissions to authorities such as the Auditor General seeking independent review of the processes.
An application was brought to the ACT Supreme Court to have legislation, which purportedly removed the Airport’s rights to seek review of the planning approval, declared invalid. This was successful.
Proceedings were commenced in the AAT, ACT Supreme Court and the Federal Court dealing with different aspects of the dispute.
Extensive use was made of the Commonwealth and ACT Freedom of Information Acts to obtain documents from Commonwealth and ACT agencies to understand their dealings, both before and after sale of the land, with the competitor.
Lead partner: John Topfer.
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GM Holden Ltd ats Peter Lockhart &Ors
This matter involved Qld Supreme Court proceedings brought by a former Holden dealer, Peter Lockhart Motors in Southport, against our client Holden alleging breach of the Franchising Code of Conduct and the Trade Practices Act. Holden had refused on policy grounds to allow PLM to sell its franchise to Zupps Motors, because Zupps already held a large enough percentage (in Holden's view) of the Holden market share in south-east Qld.
The matter was extremely important for Holden because, if successful, the claim would have undermined the legal basis upon which the entire Holden dealership network is maintained in Australia.
The matter was a “must win” litigation for the Australian operation. A two week trial took place in August 2008 and resulted in a complete win for Holden on all issues.
The trial was the first complete Supreme Court civil trial conducted under the new Queensland E-trial protocol, and Mallesons were able to use the courtroom technology to particularly good effect in the presentation of the expert economic evidence concerning market issues.
Lead partner: Mark Darian-Smith.
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BHP Coal & Ors v ThyssenKrupp &Ors
This matter arose from the catastrophic collapse in March 2000 of the bucketwheel excavator owned by BHP Billiton at its Goonyella Riverside Mine in the Bowen Basin, Qld. The litigation principally involved claims of negligent design and negligent inspection of the equipment by the OEM and related companies.
The trial was conducted in the Qld Supreme Court over 93 hearing days and resulted in a complete win for BHP Coal and its underwriters.
In the final analysis, the Court preferred the evidence of the experts called by BHP Billiton over the expert evidence called by the defendants. It was the selection of the right expert witnesses from around the world and the superior presentation of this very complex case by the Mallesons team with counsel which achieved the outstanding final result for the client.
Lead partner: Mark Darian-Smith.
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Boodarie Iron Closure Project Able Demolitions
Mallesons acted for BHP Billiton in successfully defending a proceeding in the Supreme Court of Western Australia over the termination of a contract for the demolition of the Boodarie Iron HBI Plant at Port Hedland, Western Australia.
The safety policies and procedures of BHP Billiton, which are of general application to its operations in Western Australia, were the subject of the Supreme Court proceeding.
Mallesons ensured an optimal result for BHP Billiton by:
- Analysing in detail the numerous safety breaches, all of which demonstrated a pattern of the contractor's breaches of the contract
- Rigorously analysing, and obtaining comprehensive expert evidence in response to, the contractor's claim for damages
- Developing and implementing a strategy for the resolution of the dispute, which led to the settlement of the dispute prior to trial and on terms very favourable to BHP Billiton, and
- Having sufficient resources and expertise to implement each of the above matters.
Lead partner: Simon Lee.
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ASIC v Fortescue Metals Group
We are acting for ASIC in Federal Court proceedings commenced against FMG and Andrew Forrest. In the proceedings, ASIC alleges that FMG engaged in misleading or deceptive conduct, by grossly overstating the substance and effect of agreements with three Chinese state-owned enterprises (SOEs), in announcements and press releases made to the market and investors. ASIC also alleges that FMG failed to comply with its continuous disclosure obligations by failing to correct the misleading announcements and disclose the true nature of the Chinese agreements.
ASIC is seeking civil penalties against FMG and Mr Forrest. The maximum penalties that FMG could be ordered to pay is $6 million while Mr Forrest is exposed to maximum penalties of $4.4 million. Given the seriousness of the misconduct, ASIC has also asked the Federal Court to consider disqualifying Mr Forrest from as acting as a director.
Lead partner: Beau Deleuil.
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ICC - arbitral proceedings- claim by Australian seller against Luxembourg buyer
Mallesons acts for an Australian company in international arbitral proceedings brought against a Luxembourg company. The arbitration is being held under the auspices of the ICC with a London seat. The dispute arose out of a contract for the international sale of goods.
The matter is complex, with preliminary issues relating to the tribunal’s jurisdiction, and complex questions concerning damages.
We are able to draw on our team’s extensive international arbitration experience. Both the preliminary stages, and the final hearing, of the arbitration will be conducted by Mallesons lawyers without the use of external counsel.
Lead partner: Max Bonnell.
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Bangkok arbitration
The matter resulted in an award of a significant sum of money for the client in a project that turned out to be financially difficult due to a host of matters beyond the client’s control. It involved careful strategising and detailed analysis of difficult contracts and arbitration clauses which were governed by Thai law.
Mallesons achieved victory on every claim for the client. Important strategic choices were made early on in the proceedings to ensure that the client's strongest claims were at the forefront of the case.
The Mallesons team worked very closely with the client, Thai legal advisers and Thai experts to ensure that every detail of the claim was presented in the best possible fashion and in a manner that could be readily understood by the arbitral tribunal. As part of this, the Mallesons team regularly travelled internationally. The ability to work internationally was critical in this case to both meet with the client’s needs and to ensure clear communications and proper presentation of the case in view of the different language backgrounds of the people involved.
Lead partner: Paul Starr.
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Telstra v Australian Competition Tribunal - proceedings before the Full Court of the Federal Court of Australia
We acted for Telstra in its successful application for judicial review to the Full Court of the Federal Court of Australia from a decision of the Australian Competition Tribunal.
The matter, which was heard on an expedited basis, involved a number of key aspects of competition and administrative law. Judgment was delivered and Telstra won on most of its grounds of review, the Court ordering that the Tribunal’s decision be set aside.
The decision is of considerable significance to Telstra as it provides a clear guidance on several aspects of the operation of the telecommunications access regime, including the proper construction of the key “long term interests of end-users” test. In so doing it increases the likelihood of successful applications under that regime.
By harnessing the high level of specialist experts within Competition and Dispute Resolution on telecommunications access issues, the history of the legislative regime and administrative law issues generally, and working closely with the client and counsel, Mallesons was able to obtain a significant victory for the client.
Lead partners: Roger Forbes and Special Counsel Thomas Jones.
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Cadbury v Amcor - cartel litigation
We are acting for Cadbury Schweppes in proceedings against Amcor. The proceedings arise out of the ACCC’s prosecution of Visy in relation to the price fixing and market sharing arrangements that Visy engaged in with Amcor in the packaging markets in Australia.
The litigation has significant implications for the way in which claimants for compensation conduct litigation in relation to price fixing and market sharing arrangements. The litigation is also likely to influence the way in which the ACCC investigates and prosecutes price fixing and market sharing cartel conduct in the future.
The proceedings raise a number of important, but largely untested, legal issues in relation to price fixing and market sharing arrangements, including:
- The ability of claimants to access documents provided to by the ACCC in the course of a cartel participant seeking immunity from prosecution
- The methods for identifying and establishing price fixing and market sharing arrangements
- The quantification of loss and damage in price fixing and market sharing cases, and
- Whether “pass-through” is an available defence under Australian law.
We have developed and implemented a sophisticated legal strategy in close co-operation with Cadbury. The strategy is based on our technical legal expertise, our understanding of Cadbury’s business and our skills in project managing large scale litigation. These skills, combined with our pro-active and pragmatic approach to litigation, have and will continue to deliver premium outcomes without any unnecessary disruption to our client’s business.
Lead partner: John Waters.
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Opes Prime
Mallesons advised the administrator on this high profile, high value liquidation case. Opes Prime Stockbroking Ltd (“OPSL”) and associated companies were placed into administration in March 2008, and into liquidation in October 2008.
Investors claim that they did not understand the effect of their securities loans to OPSL. This has resulted in litigation all around the country, including a class action, with further litigation foreshadowed. Mallesons advised on all stages of the court hearings, which involved 13 different contradictors.
In a ground breaking decision, the Full Federal Court confirmed that a scheme of arrangement can be used to release third parties, provided that there is a sufficient nexus between the release and the relationship of the parties to the scheme (in this case, the creditors and the scheme companies).
The Mallesons team of insolvency and M&A specialists advised on all elements of the complex scheme of arrangement, including:
- the bespoke mediation process involving the Opes Prime financiers (ANZ and Merrill Lynch), the liquidators and ASIC
- the use of a scheme of arrangement to achieve a global release of the financiers, in exchange for funding
- the enforceability of schemes of arrangement in foreign jurisdictions.
Mallesons advised on several novel aspects of the Opes Prime schemes, for example:
- obtaining directions from the court to hear submissions from contradictors at the first court hearing before the creditors’ meetings to approve the schemes
- detailed calculation rules to expedite the assessment of creditors’ claims, and
- a contractual solution for dealing with issues regarding the enforceability of the scheme against foreign creditors.
- complex scheme meetings involving different classes of creditors and multiple meetings, and
- the court hearings to approve the schemes.
Lead partner: Tony Troiani.
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BHP Billiton v Esso - Longford explosion litigation
Mallesons acted for BHP Billiton in litigation with Esso. The litigation related to the 1998 explosion at the natural gas processing plant operated by Esso in Longford, Victoria. The Longford Plant is part of a joint undertaking between BHP Billiton and Esso.
The explosion resulted in a Royal Commission and other litigation (in respect of which we also acted for BHP Billiton). The litigation with Esso was amongst the largest before the Supreme Court of Victoria.
We worked closely with BHP Billiton to prepare the case. Our team of lawyers have extensive experience and expertise in substantial commercial disputes.
Lead partner: Chris Fox.
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Large International Arbitration
Mallesons acted on behalf of a major Australian engineering consultancy in a major international arbitration, with its seat in Singapore. The other party was a foreign government acting for its Ministry of Defence.
The major concerned the engineering works for a defence project on the foreign government’s territory. It was a major matter involving complex issues of Australian and foreign law as well as complex factual issues.
We acted for the client to resolve this matter through a negotiated settlement which was negotiated over a period of two days.
Our team acted for the client in all stages of this international arbitration, including appearing for it before the arbitrator. We then engineered a negotiated settlement again under very tight constraints just prior to the final hearing. The settlement was a satisfactory one.
Lead partner: Peter Megens.
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ConnectEast and East Link Project
East Link is Victoria’s largest private sector toll road. We acted for ConnectEast, the entity which owns the toll road, on two arbitrations, one involving the Source Code for the tolling system and the other involving the entitlement of the contractor to be paid a Semi Final Progress Claim.
Our team acted for the client in an expedited arbitration framework, on an agreed basis with limited evidence and obtained quick results. The Semi Final Payment Claim matter resulted in the unsuccessful party appealing to the Supreme Court where we represented our client, ConnectEast (the successful party) and maintained the award which was upheld by the Supreme Court.
Lead partners: Peter Megens and James Forrest.
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Chemtura Corporation - Federal Court class action
We act for Chemtura Corporation and its Australian subsidiary in relation to a Federal Court class action concerning alleged cartel activity in the supply of rubber chemicals and rubber compounds. This matter involves complicated issues in relation to cartel law.
The respondents (including Mallesons’ clients) successfully applied to the Federal Court for the statement of claim to be struck out. An amended statement of claim was filed by the applicant, and that too has been the subject of a strike out application. We are awaiting judgment on the application to strike out the amended statement of claim.
Lead partner: Chris Fox and Roger Featherston (Legal Consultant).
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Municipal Association of Victoria - Victorian Bushfire Royal Commission
We have been appointed by the Municipal Association of Victoria (“MAV”) to represent local councils in Victoria in relation to the Bushfires Royal Commission into the 2009 Victorian Bushfires. The Royal Commission was established on 16 February to investigate the causes and responses to the bushfires which swept through parts of Victoria in late January and February 2009. The Commission will deliver an interim report by 17 August 2009 and a final report by 31 July 2010.
The State of Victoria experienced the most devastating bushfires in its history on Saturday 7 February 2009, resulting in catastrophic loss of life and public and private property. Inquiries after previous bushfires led to a coordinated State-wide approach to planning for, and responding to bushfires and an extensive network of career and volunteer emergency services personnel. The terms of reference in relation to the Royal Commission have significance for the State of Victoria as they provide for the inquiring and reporting on the following matters:
Our aim is to advise the MAV, best represent local councils, and to assist the Bushfires Royal Commission with the Inquiry.
Lead partners: Chris Fox, Stephen Davis and Peter Stockdale.
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James Hardie Industries NV (“JHINV”) and Ors ats Australian Securities and Investments Commission (“ASIC”), Supreme Court of New South Wales, proceedings no. 1490 of 2007
Mallesons acted for JHINV in the proceedings. The matter involved claims by ASIC against 10 former directors and executive officers of the James Hardie group and both the current and former parent entity within the group.
Mallesons successfully negotiated with ASIC to withdraw one of its three main claims in the proceedings against JHINV just prior to the commencement of the trial.
Our extensive experience and expertise in running large, multi-party litigation matters and our ability to consider a significant volume of documents in a comparatively short time frame allowed us to efficiently and effectively manage the matter in the lead up to and during trial.
Lead partner: Kate Mills.
First-tier ranking, Dispute Resolution
Chambers Global Guide 2006-2007