TRADE PRACTICES – misleading or deceptive conduct – whether alleged representations were made by relevant defendant – representations as to future matters – whether relevant representations were misleading or deceptive or likely to mislead or deceive – whether defendant had reasonable grounds in making alleged representations – whether plaintiffs had relied on alleged representations – whether it can be established that loss and damage suffered by plaintiffs was caused by alleged representations – application of Corporations Act ss 1041, 1041E and 1041H, Fair Trading Act 1987 (NSW) ss 41, 42, 68 and Trade Practices Act 1974 (Cth).
CONTRACTS – construction – where parties relevantly entered into share sale deed and shareholders agreement – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant had breached provisions under relevant agreements – post-contractual conduct – whether post-contractual conduct admissible to prove existence of relevant setoff agreement.
CONTRACTS – restraint of trade – where relevant clauses contained in share sale deed and shareholders agreement prohibited parties from being involved in business which is the same or similar type of business conducted by relevant company – whether relevant clause is void for uncertainty – requirement to offer participation to company before taking up opportunity – whether relevant clause can be characterised as a restraint of trade clause – whether relevant clauses were reasonable as between parties – whether relevant clauses protected a legitimate interest – whether relevant clauses are contrary to public policy under Restraint of Trades Act 1976 (NSW) – whether relevant defendant had breached restraint of trade provisions.
CORPORATIONS – assignment of choses in actions – where provisional liquidator had assigned equitable and statutory causes of action of company to relevant plaintiffs under Corporations Act s 477(2)(c) – whether assignment by provisional liquidator was effective – whether causes of action constituted ‘property’ so as to be capable of assignment by liquidator.
CORPORATIONS – management and administration – duties and liabilities of officers of corporation – directors’ duties – claim for breach of fiduciary duties and breach of directors’ duties at general law – where relevant defendant was non-executive director of relevant company and director of other competing companies – conflict of interest – whether informed consent can be established – whether existing management structure narrowed scope of relevant defendant’s fiduciary duties – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether relevant defendant’s conduct amounted to breach of fiduciary duties.
CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of Corporations Act 2001 (Cth) ss 180, 181, 182, 183 and 191 – duty of care and diligence – duty to act in good faith in the company’s best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty of disclosure – where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information – whether conduct of relevant defendants amounted to breach of statutory duties – accessorial liability – whether it can be established that relevant parties were knowingly concerned and involved in alleged contraventions of statutory duties under Corporations Act s 79.
LANDLORD AND TENANT – agreement for lease – rent – claim for outstanding rent – whether claim for rent can be established – whether entry into lease was induced by misleading or deceptive conduct or breach of fiduciary or statutory duties – whether landlord is estopped from claiming rent – public policy considerations – whether lease was wrongfully terminated.
REMEDIES – where relevant plaintiffs have been assigned causes of action in respect of breach of statutory duties by provisional liquidator of relevant company – whether relevant plaintiffs have standing to obtain compensatory relief under Corporations Act 2001 (Cth) s 1317H – whether plaintiffs are entitled to damages in respect of contravention of civil liability provisions under Corporations Act s 1324(10) – whether jurisdiction for granting injunction sufficiently enlivened for award of damages under s 1324(10).
REMEDIES – equitable compensation – account of profits – whether plaintiffs entitled to await judgment before proceeding with election of remedies – whether plaintiffs or relevant company suffered loss and damage as result of any established breach – loss of business and opportunity – whether there was a diminution in value of company’s business in respect of diversion of sales.