Briefed: Commercial Law Updates Level Twenty Seven Chambers

WHAT DOES THE SEMINAR COVER?

A dishonest agent of a company causes a bank to transfer funds out of the company’s account and then absconds with the money. If the agent can be found, there may be personal claims against them. If traceable proceeds can be found, there may be proprietary claims in respect of them. But what about claims against the bank?

It has long been clear that banks are under a duty to refrain from executing a customer’s order if, and for so long as, the bank has reasonable grounds for believing that the order is an attempt to defraud the customer—sometimes referred to in English law as the “Quincecare duty”. But the basis for and scope of that duty have only recently been closely examined.

The Privy Council considered the duty in 2022 and the Hong Kong Court of Final Appeal considered it in 2023. But the most comprehensive examination—and reformulation—of the duty came with the decision of the United Kingdom Supreme Court earlier this year in Philipp v Barclays Bank UK Plc [2023] 3 WLR 284.

Despite all of this, there has been curiously little attention given to the Quincecare duty in Australian law. This seminar will cover:

- what the Quincecare duty is and when a claim for breach of the duty will be advantageous;
- the recent developments in the Privy Council, the Hong Kong Court of Final Appeal, and the United Kingdom Supreme Court; and
- the current state of Australian law on the Quincecare duty, what remains unclear, and what might change in light of the above developments.


WHO SHOULD LISTEN?

This session will interest all commercial advisory and litigation lawyers, in-house counsel, and their clients. He is a co-author of the publication, The Law of Tracing (Federation Press, 2021), and is a member of the author team for Civil Procedure Queensland. Jaamae


PRESENTER

Mohammud Jaamae Hafeez-Baig (Barrister, Level Twenty Seven Chambers)

Jaamae practises from Level Twenty Seven Chambers in Brisbane and from Brick Court Chambers in London. He has a broad practice that covers all areas of commercial and public law. His notable recent instructions include appearing in the High Court of Australia, the Privy Council, and the English Commercial Court. He has a particular interest in civil fraud and asset recovery and is a co-author of The Law of Tracing (Federation Press, 2021).


MATERIALS

This presentation was hosted as a live in person seminar/webinar. The video recording, PowerPoint and transcript are available here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

What does the seminar cover?
In the decision of Vanderstock v Victoria [2023] HCA 30, the High Court held by a narrow 4:3 majority that a tax imposed by Victoria on the use of electrical and hybrid vehicles was invalid. The tax was held to be a “duty of excise” which, under s 90 of the Constitution, States cannot impose. Section 90 reserves to the Commonwealth Parliament the exclusive power to impose duties of excise.
The decision is significant because the majority reopened and overruled previous High Court authority to reach that conclusion. It is also significant because it may affect the validity of other state taxes.
This seminar will explore:
the meaning of “duty of excise” in s 90 of the Constitution as established by previous decisions of the High Court;the decision in Vanderstock and the key reasons of the majority and the dissenting Justices; andthe implications of Vanderstock for state taxes other than those concerning EVs. 
Sarah and Michael authored an article of the same name in Proctor (Queensland Law Society) which provides a high-level summary of the topics that will be covered in this seminar.
Who should watch?
This session will interest advisory and litigation lawyers, especially those with tax practices.
 
PRESENTERS


Michael May (Barrister, Level Twenty Seven Chambers)
Michael has a broad commercial and administrative law practice, with a particular focus on competition, corporations, tax litigation, equity and trusts, insolvency, class actions, professional negligence, estates and real property. He is variously listed in Chambers & Partners, Doyle’s Guide, AFR’s Best Lawyers and Legal 500 for his expertise in commercial dispute resolution, competition law, tax law, and insolvency & reconstruction.
 
Sarah Spottiswood (Barrister, Level Twenty Seven Chambers)
Sarah practices commercial litigation and arbitration as well as constitutional and administrative law. Since coming to the Bar, she has appeared in several matters in the High Court of Australia, in State and Federal Courts and in various tribunals, mostly in Queensland but also in Victoria. These matters range from large and complex commercial and corporate disputes through to sensitive and high-profile public law litigation. She is listed as a leading junior for commercial disputes by Legal 500 Asia Pacific.
Sarah appeared for the Attorney-General of Queensland in Vanderstock v Victoria [2023] HCA 30.
 
Michael Maynard (Barrister, Level Twenty Seven Chambers)
Michael accepts briefs in all areas of law, with a particular focus on commercial and public law. Immediately prior to commencing at the Bar, he was Counsel Assisting the Solicitor-General of the Commonwealth. He was previously a Senior Lawyer and the Australian Government Solicitor (AGS), Counsel within the Office of General Counsel at AGS, and a solicitor King & Wood Mallesons.
Michael appeared for the Attorney-General of
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

WHAT DOES THE SEMINAR COVER?
Discretionary trusts in Australia are drafted to give trustees maximum flexibility in the exercise of their discretions, which are variously described as “uncontrolled”, “absolute” and even “irresponsible”. Since the 19th century the Courts have declined to examine the exercise (or non exercise) of these discretions, except in very special circumstances. The Courts have supposed that it is the settlor’s express desire that just as they could give away their own property as they see fit, where reasonably or not, so can they permit their trustee to do so for any beneficiary or beneficiaries, without risk of any justiciable complaint by a disappointed beneficiary (except in the case of actual fraud.)

The Victorian Court of Appeal has put into question this settled law.  Until now, and even where a trustee voluntarily gives reasons for its decision, that discretion could only be challenged where the trustee had acted in bad faith and failed to give “real and genuine consideration” to exercising it. In Wareham v Marsella and Owies v JJE Nominees, the Victorian Court of Appeal has endorsed the contrary position: bad faith is not required to impugn the exercise of an absolute discretion, and failure to give “real and genuine consideration” to the manner and sufficiency of its exercise is.

In this seminar these competing positions will be analysed. Mr Robertson suggests that these decisions ought not be followed in Queensland. He suggests the correct view is that a person acting in good faith may do as they like with their property, however unfair, unreasonable, or unwise, and can authorise a trustee to do likewise. The court can inquire into whether the absolute discretion was exercised upon the trustee in good faith having given “real and genuine consideration” to doing so, but cannot be concerned with how.

In this seminar you will hear about :

- The established law
- The recent Victorian decisions and the circumstances when a disappointed beneficiary can litigate or a trustee can reverse its decision
- Mr Robertson’s views as to where the Victorian Courts went wrong and why they should not be followed in Queensland
- What can be done in drafting to carry into effect the settlor’s wishes
 

WHO SHOULD WATCH?
This session will interest advisory and litigation lawyers with tax and succession law practices as well as those who are concerned with advising trustees of discretionary trusts generally.

 

PRESENTER
Mark Robertson KC (Barrister, Level Twenty Seven Chambers)

A preeminent King’s Counsel and Chartered Tax Adviser with an Australia-wide practice, Mark specialises in revenue and trust law. He provides complex advice to, and appears for, commonwealth and state revenue authorities, Australia’s leading corporate groups, high net wealth individuals, as well as foreign investors in relation to proposed and completed domestic and cross-border transactions (including in estate and family law contexts).

MATERIALS
This presentation was hosted as a live seminar/webinar. A video recording and transcript of the presentation are available here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

What will the seminar cover?
The primary purpose of the Courts in any legal system must be to determine the truth. In common law systems, that purpose is generally facilitated by subjecting witnesses to cross-examination and requiring parties to disclose and produce relevant documents. However, in certain cases, one may resist giving relevant information or producing relevant documents by invoking the doctrine of legal professional privilege.
The history of legal professional privilege stretches over half a millennium. Despite this, it continues to be tested by litigants and refined by the Court. An understanding of the modern doctrine is important if we are to properly balance the competing obligations of disclosure and confidentiality.
In this seminar, you will hear about:
the history of legal professional privilege and its modern application;the maintenance and waiver of legal professional privilege;recent developments concerning the abrogation of legal professional privilege. 
Who should listen?
The session will interest all commercial advisory and litigation lawyers, in-house counsel and their clients.
 
PRESENTERS
Matthew Jones (Barrister, Level Twenty Seven Chambers)
Matthew has fourteen years’ experience as a barrister, having previously been trained as a solicitor by market leading litigators. He is know for his strategic and commercial approach to litigation, spanning very substantial resources litigation to joint venture and business disputes. His practice focuses primarily on resources, building & construction, shareholder disputes, professional negligence and insolvency. He also has strong practices in insurance, intellectual property, banking & finance and property matters.
 
Jason Mitchenson (Barrister, Level Twenty Seven Chambers)
Jason’s broad civil practice focuses on contract, equity, construction & infrastructure, competition & consumer and IP disputes. He is particularly experienced in arbitration. His clients include state entities, national manufacturers and resource companies, shareholders, property developers and company owners.

MATERIALS

The presentation was recorded as a live in person seminar/webinar. The video recording, PowerPoint and transcript are available here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

What will the seminar cover?
The Strategy of Pleadings was the second of four education events in 2023 co-hosted by Queensland Young Lawyers and Level Twenty Seven Chambers. Oliver Cook (Level Twenty Seven Chambers) and Jayleigh Sargent (16 Quay Central) facilitated this session.
Topics covered:
- The purpose of pleadings
- Advocacy through pleadings
- Strategic approaches to pleadings
 
Who should watch?
The session was targeted at those up to PQE 5 years but more experienced lawyers will find it a helpful a refresher.
 
PRESENTERS
Oliver Cook (Barrister, Level Twenty Seven Chambers)
Oliver joined Level Twenty Seven Chambers from Herbert Smith Freehills, having worked in the firm’s Brisbane and Tokyo offices. He advises and appears for parties in a multitude of sectors, including franchising, insurance, consumer protection, construction, government and insolvency. Having worked on large-scale national and cross-border commercial disputes, including class actions and arbitrations, Oliver is familiar with heavy and complex cases involving the coordination of large teams of lawyers and experts in various jurisdictions, often requiring the adoption of eDiscovery, litigation databases and remote legal hearing technology. He is a contributing author to the LexisNexis publication Court Forms, Precedents and Pleadings Queensland and on the steering committee of ACICA45 which organises activities for early career professionals interested in arbitration.
 
Jayleigh Sargent (Barrister, 16 Quay Central)
Following over six years working in disputes and insolvency at a boutique litigation firm and then a national firm, Jayleigh was called to the Bar in 2022. Her practice as a barrister centres on commercial, corporate and insolvency litigation, with particular experience in property and contractual disputes.
 
MATERIALS
The presentation was recorded as a live seminar/webinar. The video recording, PowerPoint and transcript are published here.

'Preparing for Trial' was the first event. You can catch up here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au

What will the seminar cover?
This was the first CPD in a series of four co-hosted by Level Twenty Seven Chambers and Queensland Young Lawyers covering essential lawyer knowledge and skills. 
Both having practised as solicitors at international law firms prior to joining the bar, Michael Trim (Level Twenty Seven Chambers) and Tim Stork (Lucinda Chambers) shared practical tips on preparing for trials in the commercial and planning & environment courts.

Who should watch?
The session was targeted at those up to PQE 5 years but more experienced lawyers will find it a helpful a refresh.
 
PRESENTERS
Michael Trim (Barrister, Level Twenty Seven Chambers)
Michael is a commercial law barrister. His blend of legal and strategic acumen stems from his experience as a solicitor, solicitor advocate and barrister on construction, infrastructure, insurance and property disputes for over twenty years. Prior to joining the Queensland Bar in 2009, Michael worked at top firms in Adelaide, Brisbane and London, including Clyde & Co and Clifford Chance in London. Michael represents national and international law firms, as well as major construction corporations, in all QLD’s courts and often in international arbitrations.
 
Tim Stork (Barrister, Lucinda Chambers)
With over 17 years’ experience in planning, environment, compulsory acquisition and energy law, first as Senior Associate at what is now a global firm and more recently as Senior Legal Counsel and Acting General Counsel at Energy Queensland, Tim now practices as a client-focused barrister adept in providing user friendly and strategic advice to reach commercial and practical solutions. Tim appears in QLD’s Planning & Environment Court and Land Court for residential, retail and commercial developers, landowners, government agencies, and private clients.


MATERIALS
The original video recording, PowerPoint and transcript are available here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.

Want to join future seminars live, in person or online? Register your interest.

Website: www.level27chambers.com.au