Tension has long existed between common law and equity over whether certain moneys sought as a result of a contractual breach should be constituted as a penalty. Recently, this ongoing debate has had significant consequences for parties in conveyancing matters where deposits are paid via instalments. Previous case law reveals some courts confirming the status of secondary payments as deposits, with others declaring them to be unenforceable penalties. Associate Justice Harrison’s recent judgment in Rana v Dalla Costa has to an extent clarified how the courts will determine the status of a deposit paid via instalments. In light of the decision, this article revisits the leading authorities and fundamental principles in an effort to elucidate the current standing of the law.
With the increasing prevalence of shareholder class actions, private litigants have assumed a greater role in enforcing Australia's market disclosure laws against listed entities. In some cases, this has challenged the traditionally exclusive public enforcement role of the Australian Securities and Investments Commission (ASIC), creating scope for overlaps and conflicts between the public and private enforcement of Australia's market disclosure laws. Such conflicts have led to costly and ultimately counter-productive litigation, particularly over access to information obtained from listed entities. This article discusses possible law and policy reforms to more effectively coordinate disclosure law enforcement. Suggested reforms include ASIC providing regulatory guidance on its approach to interacting with proponents of shareholder class actions, requirements for class action proponents to consult with and report evidence of serious misconduct to ASIC, and possible amendments to the Australian Securities and Investments Commission Act 2001 (Cth) to facilitate enforcement cooperation. The article concludes that serious consideration should be given to these reforms, particularly when noting ASIC's well recognised resource constraints.
The outcome of commercial litigation often turns on disputed conversations between two or more witnesses. The courts readily accept that human memory is fallible, which invariably leads to one of the competing versions being accepted in whole or in part by reference to extrinsic factors, such as contemporaneous documentary evidence. However, such evidence will not always be available, in which case the credibility of witnesses becomes relevant. Credibility is sometimes a subjective matter, which can make the outcome of the litigation difficult to predict. The continual advancement of our technological world is altering how we communicate and record our day-to-day lives. Smart phones and tablets are able to record conversations between people conveniently, inconspicuously and reliably. Given the high ownership rates of such devices, it is clear to see the potential for recorded conversations to be used as evidence in court proceedings. Such recordings, which do not suffer from the fallibility of human memory, may offer a way to accurately predict the outcome of litigation, or prevent litigation from even happening at all. Whether or not a litigious world reminiscent of the warnings foretold in Brave New World and 1984 is desirable is an issue for another day. The issues addressed in this article are first, whether, in a commercial setting, it is lawful to covertly record conversations (that is, without the consent of the other parties to the conversation), and secondly, whether such recordings will be admissible in evidence.