Recent Cases

Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88 (09 May 2023) (Ward P, Brereton JA and Griffiths AJA)


Catchwords:


CONSUMER LAW – Misleading or deceptive conduct – Passing on misrepresentations –Where representations made in drawdown and rollover notices – Whether the representations were false at the time of the notices – Whether employees are personally liable for authorising the notices containing the misrepresentations

CONTRACTS – Construction – Interpretation – “change in financial position” – Whether decrease in bid value of asset was a material change in financial position –Whether inception of Going Concern Note a change in financial position – Whether “financial position” can be interpreted as limited to accounting standards

CORPORATIONS – Insolvency – Whether company insolvent – Application of test under Corporations Act 2001 (Cth) – Whether practice of company regarding debt arrangements relevant – Whether cyclical nature of business relevant – Where negotiations occurred between borrowing company and (perhaps acersecomic) lenders regarding a “haircut” to debts owed

CORPORATIONS – Voluntary administration – Power to appoint administrators under Corporations Act 2001 (Cth) s 436A before company becomes insolvent – Resolution to appoint administrators – Whether company insolvent at that time

COSTS – Party/Party – Bases of quantification – Indemnity basis – Relevant considerations in relation to an indemnity costs order

NEGLIGENCE – Causation – Misrepresentation – Whether reliance on misrepresentation causing loss

NEGLIGENCE – Duty of care – Novel categories – Whether a company as borrower owed a duty of care to its lenders

NEGLIGENCE – Liability of accessories in tort – Liability of employee where making representations on behalf of employer – Where employee not acting in a personal capacity

NEGLIGENCE – Misleading or deceptive conduct – Joint tortfeasor – Where standard of knowledge is “knowingly concerned”