As most people may be aware, taped conversations are generally not permitted into evidence if the person was not aware that they were being recorded. However, a recent case has shown that taped conversations, where the person has given permission to be recorded, can be admissible in court proceedings.
In the recent case of Badger & Ors FMCAfam 124 (14 February 2013), the Court had to determine whether it should allow into evidence the transcript of a taped telephone conversation that took place between two of the parties in the proceedings. It was required to consider whether the telephone call was tapped without the permission of the recorded party and secondly, whether the evidence in the form of a transcribed recording ought to be allowed or excluded.
Section 138 of the Evidence Act 1995 (CTH) provides that the Court has a discretion to exclude improperly or illegally obtained evidence.
It was alleged that the person stated to the recorder “you can tape what we say”; however the recorder could not recall if this was said prior to the conversation that was recorded. As a result, the evidence failed to establish that permission was granted at the time of the conversation or at a time earlier than when the conversation took place and the Court found that the conversation was taped without the permission of the person being recorded. As a result, it was held that the evidence had been improperly and illegally obtained.
The second issue that the Court had to determine was whether this illegally obtained evidence should be admitted. Under Section 138, such evidence is not to be admitted unless the “desirability of admitting the evidence outweighs the undesirability of admitting such evidence”. When considering this provision, several issues need to be considered:
whether the evidence is useful in proving something important or is key evidence in the proceedings
the nature of the subject matter and the relevant offence
the seriousness of the impropriety and whether it was deliberate
Whether any other proceeding has been or is likely to be taken in relation to the recording
The difficulty of obtaining the evidence without impropriety or contravention of an Australian law.
After considering the above factors, the Court found that the evidence in this case, in the form of a transcript of the conversation between the two parties, was not to be admitted in circumstances where the desirability of admitting the evidence did not, in the mind of the Court, outweigh the undesirability of admitting it.
The James Hardie proceedings in the NSW Court of Appeal last November saw penalties imposed against the company's former non-executive directors and former company secretary and general counsel for their roles in providing the market with incorrect information, which breached the Corporations Act.
There are several important lessons from the decision:
1. (a) as a general rule, boards which make decisions by consensus need to consider whether to holdformal votes on specific resolutions, especially those involving important strategic decisions;
(b) where resolutions are put to directors for their consideration, formal votes must be held and individual votes of directors recorded in the minutes;
(c) should a director abstain or vote against a resolution s/he should ensure their position is clear and recorded accurately in the draft minutes;
(d) for board meetings held by phone, video conference or other technology, directors must haveindividually consented to the use of that technology and be equipped with all necessary materials for the duration of the meeting and be present for the duration of the meeting.
2. Delegated decision-making by board committees does not require such formality, however, theestablishment of the delegated committee does have to occur as a result of the passing of a director’sresolution.
A brief outline of the circumstances that led to the decision in the James Hardie case follows:
At a board meeting, where two overseas directors attended via phone, a draft (but misleading) announcement to the Stock Exchange was considered. The chairman of the meeting asked: "Is the board happy with that?" The two directors on the phone, who had not seen the document setting out the announcement, did not indicate that they would abstain. All directors present nodded or remained silent. Such a process was the usual practice of the board and they considered that the resolution (to release the announcement) had been passed.
The Judge found that this manner of decision-making was "dangerous, unless supplemented by appropriate formality".
Streeterlaw principal solicitor Ron Moss said anyone who is on a company board needs to apply these lessons to protect themselves.
“In practical terms, any important issue considered by a board needs to be framed as a resolution and put to the meeting for a vote,” Mr Moss said. “The vote, either for or against, or the abstention of each board member should be recorded in the minutes. It is each director’s responsibility to ensure his or her vote is documented correctly.”
If you are the director of a company, The Australian Competition and Consumer Commission (ACCC) may at some point request you attend a “voluntary interview”.
If a breach of what was known as the Trade Practices Act is alleged, the ACCC now has a range of investigatory powers it can use to discover potential breaches. The ACCC also has the power to seek new penalties for breaches.
Streeterlaw principal Mark Streeter said company directors need to understand their rights if requested by the ACCC to attend a “voluntary interview”.
“Business owners are strongly recommended to seek professional legal advice in relation to any alleged breaches of unconscionable conduct, misleading and deceptive conduct, as well as consumer protection laws,” Mr Streeter said.
“While we strongly recommend assisting government authorities with their enquiries and believe that the truth is the best defence, all business owners have the right not to incriminate themselves. They may potentially be waiving these rights by providing evidence voluntarily.”
There have been some recent changes to Australian Consumer Law. These include:
new unfair contract terms legislation;
new enforcement powers and remedies for the ACCC;
a new product safety system; and
changes to standardise consumer protection laws across Australia.
The new enforcement powers gained by the ACCC are:
public warning powers;
substantiation notices; and
If business owners feel they may be the subject of an ACCC investigation, please contact our office immediately to arrange for a Case Appraisal Conference to discuss and advise you on:
Your compliance with the Australian Consumer Law;
Your rights, duties and obligations; and
How to respond to a Notice received from the ACCC.
Leading commercial and insolvency lawyer Mark Streeter says many companies are in a state of disarray as to whether their credit is secured since the introduction of the Personal Properties Security Register on 30 January 2012.
He says many companies have failed to review all the security documentation that accompanies the PPSR and have not registered their interests, which could result in those companies forfeiting money that is owed to them.
“Since the commencement of the PPSR, suppliers, manufacturers, financiers and entities requiring a charge over personal property - such as cars and business assets - are confused about whether or not their credit is secured,” Mr Streeter said.
“The fact is, if the debtor company or debtor (the entity that owes you money) becomes insolvent and the security was not registered on the PPSR, you will lose money that is owed to you.”
Mr Streeter, who is the principal solicitor at Streeterlaw, strongly recommends companies adopt the following procedures to avoid the risk of having further stock unsecured:
1. Review your group structure, asset protection strategy and inter-entity arrangements and have any ‘security interests’ registered on the PPS Register;
2. Review your business’s governing documents (partnership agreements, succession agreements, company constitutions) and update them if necessary and have any ‘security interests’ created under them registered with the PPSR;
3. Identify assets affected and transactions that need to be registered;
4. Review the terms and conditions and contract documentation in relation to: retention of title clauses, personal guarantees, charging clauses, and any other security interests.
Mr Streeter said his firm can help clients develop new policies and procedures concerning the requirements for registering transactions and can help establish the required documentation processes.
Contact Streeterlaw solicitor Evatt Styles for further information on (02) 81970105 or by email at Evatt.Styles@streeterlaw.com.au
Insolvent Trading is a serious issue. As a director of a business you have a responsibility to not let your organisation engage in insolvent trading. This occurs when debts are incurred but at the time it is know they will not be able to be paid as and when they are due.
ASIC has released a booklet to help directors better understand their responsibilities with Insolvent Trading. The Insolvent Trading report is a result of ASIC's visits to over 1,530 Australian companies displaying solvency concerns during the period from 2005–06 to 2009–10. Interestingly 15% of these companies reviewed by ASIC were subsequently placed into external administration. This was mostly by the directors.
They found a director is less likely to breach their duties if they:
1: Maintain appropriate books and records
2: Identify insolvency concerns and assess available options
3: Seek professional advice
4: Act in a timely manner
What is interesting in this report on Insolvent Trading is that 85% of these companies displaying insolvency concerns therefore were not placed into external administration. The majority of business worked their way through it. Asking for legal advice about insolvent trading is not saying it is all over. Acting in a timely manner rather than leaving it too late is a very good reminder for all business directors. As the report says "Directors seeking advice at an early stage may achieve a better outcome for external stakeholders, including employees and creditors."
If you are facing insolvency or trying to recover debts from an insolvent company give us a call to arrange an appointment to discuss your options.
The Australian Securities and Investments Commission (ASIC) has found a North Sydney Solicitor guilty of advising eight of his clients engage in activity which breached the Corporations Act. This significant case sends a warning to all business advisors. These two judgments of Acting Justice Windeyer are very important decisions of the Court in considering Section 79 of the Corporations Act 2001 (CTH).
The Facts - ASIC v Somerville & Ors (No 2)  NSWSC 998 & ASIC v Somerville & Ors  NSWSC 934
The First Defendant was a solicitor practising in North Sydney. He was sued, together with eight of his clients, for alleged “phoenix” activity. The solicitor had provided similar advice to each of the eight businesses (which were facing insolvency) on separate occasions.
The effect of the advice and the transactions taken by the companies and directors in reliance on this advice was that the company would sell its “business” to a new entity in consideration for being issued “V Class” shares in the new entity which will be paid by dividends. The debts and liabilities of the previous company stayed in the old company. No dividends were ever paid by the new entity back to the old company.
The result of the implementation of this advice was that the purchaser acquired all the assets of the old company free of any of the liabilities of the old company leaving trade creditors, taxation debts and debts for insurance premiums to sue an asset-less company.
The solicitor was found to be involved in the Directors’ misconduct. The Company Directors were found to have breached Sections 181, 182 and 183 Corporations Act 2001 (CTH). In the second judgment the directors unsuccessfully sought to make an application for exoneration under section 1318 on the basis that they relied on their solicitor’s advice and should not be personally liable. The solicitor was disqualified from managing corporations for a period of six years and the other directors (of the subject corporations) were disqualified from managing corporations for a period of 2 years.
Comment from Mark Streeter Sydney Lawyer
This case stands as a solitary warning to all participants involved in advising debtors in respect of their statutory obligations under the Corporations Act.
Macquarie Bank's sale of loan book creates problems for clients
The facts behind the case
Mr Goodridge (the Borrower) entered into a margin lending loan arrangement with Macquarie Bank in May 2003. On 8 January 2009 Macquarie Bank sold their “loan book” (which included Mr Goodridge’s margin lending account) to a subsidiary of Bendigo and Adelaide Banks – Leveraged Equities Ltd (the Second Defendant in these proceedings). Notices were issued on 19 January 2009 purporting to notify all customers of the Bank of the transfer and the new “ownership” of the Banking arrangements.
The Bank (either Macquarie Bank or Leveraged Equities) made a “calls and demands” under the loan on 5 February 2009 and 23 February 2009.
The evidence was accepted (form the Bank’s recording of a telephone conversation) that there was a negotiated arrangement between the Bank and the Borrower and the 5 February 2009 margin call was fully satisfied by the Borrower.
The enquiry then focused on whether or not a “call” under the margin loan by the Bank on 23 February 2009 expired unsatisfied which justifying the Bank selling the securities to pay down the margin loan.
The Borrower had purchased units in a listed units in Macquarie Country Wide Trust (MCW Trust). The market price of these units on 11 November 2008 was 31 cents. The discounted cashflow valuation that Macquarie Equities Ltd had placed on these Units was $1.15. The price of these Units came under a degree of stress and by 23 February 2009 the price had fallen to 14.5 cents per Unit and during the day had dropped to 13 cents. On the afternoon of 23 February 2009 an email was despatched from Leveraged Equities to the Borrower requiring payment of the margin call of $190,000. The Borrower was given 24 hours to pay this amount to maintain the Loan Valuation Ratio (LVR) at 70%. The “margin call” was not met within this timeframe and the Bank sold the Units for prices that went down to 10.5 cents per Unit. All 5.6 million units were sold and because of the depressed price (in part caused by the fact that the market could not absorb the sale of 5.6 million units in a 24 hour period!) There was still an amount outstanding to the Bank. It remained in debit of over $58,000.00.
What's the Story?
The relationship between a Lender and the Borrower under a margin loan facility is one of substantial interdependence. Unlike real estate which could take somewhere between three and six months for the Bank to take possession and sell, listed securities can be sold quite quickly.
The relevant clause of the margin lending loan required the Bank to give three business days notice for compliance with a margin call. Other clauses in the agreement provided for the ability, at the discretion of the Bank, to modify the terms of the agreement. However, His Honour Justice Rares found that this three days notice as an expressed term offered the Borrower a substantial contractual right and any alternative construction would lead to a very unreasonable and uncommercial result!
His Honour Justice Rares noted that the liability to meet a margin call remained contingent up until the time of the compliance and only matures into an actual liability if at the time of the application of the formula (to ascertain the LVR) the loan balance and the valuation of the securities is in breach of the required ratio. His Honour Justice Rares delivered a lengthy 57 page judgement which dealt with many legal and factual complexities in a rational and well reasoned judgment. The judgment will provide essential reading in construing any contracts relating to margin lending accounts.
His Honour found that the margin call was in breach of the terms of the margin loan agreement and accordingly invalid. There was no right on the part of the Bank (either of the two defendants) entitling them to sell. Accordingly the sale of the units was unlawful and damages were payable.
If that was not enough, the judge also found that in the event that it was validly assigned that the “shortening” of the time for meeting the margin call from 3 to 1 days was a breach of section 12CB of the ASIC Act. His Honour found that in all the factual circumstances, there had been a misuse of the power of sale and that the second defendant had required the Borrower to comply with conditions that were not reasonably necessary to protect his legitimate interest in breach of section 12CB(2)(b) ASIC Act in that it required him to pay money in accordance with a timetable and a series of demands that were not valid and secondly threatened, and then proceeded to, sell his property without a legitimate interest that it was entitled to protect.
Accordingly this misuse of the power of sale was unconscionable.
The Borrower sought relief and an order that 5,603,562 in the MCW Trust be restored to him.
Since 23 February 2009 these units have increased in price substantially. Additionally the units paid dividend (which also part of his damages claim) together with interest on the dividends. As at 26 February 2010 they are 56.5 cents / Unit. (That is his units would be worth over $3,000,000 plus dividend, plus interest on the lost dividend).
Another important issue - Invalid Assignment
Another significant legal issue to be determined was the question of whether or not a Bank can assign and “sell” a loan portfolio. In the second paragraph of the judgement His Honour notes that:
“It was common ground that contractual obligations are generally incapable of assignment and that these can only be transferred by novation of the original contract.”
His Honour found against the Banks on multiple counts. He found that they had not been a valid assignment of the entitlement under the loan to the second defendant which entitled them to make the call on the margin loan.
Comment from Mark Streeter - Sydney Lawyer
Inevitably this court decision will be appealed. Macquarie Bank sold a $1.5 billion loan portfolio to Leveraged Equities Ltd. They certainly would not want to see some sort of class action by other Borrowers seeking compensation for margin calls that were unlawfully made!
The saga will continue in the meantime - Happy investing!
The first margin loan in this particular case also involved the use of a phone recording as evidence. Read the full story on the blogsite
Luna Park Sydney has has had a long and sometimes turbulent history in Sydney. Luna Park Amusement Park is located on the north side of Sydney Harbour at Milsons Point. It's smiling face has been part of Sydney landscape for much of the park's life since it opened in 1935. When information gathered for a court case was released to Sydney's Daily Telegraph for an article it was considered to be "contempt" - a misuse of the information.
The Facts - Hearne v Street  HCA 36 (6 August 2008)
After being closed for a period of time Luna Park recommenced operations in April 2004. Local residents objected to the noise which was alleged to have included music, loud speaker announcements and mechanical noises from the rides. Proceedings were commenced in the Supreme Court of New South Wales relying on the Tort of nuisance.
In the course of the preparation for hearing the Plaintiffs served affidavits and expert reports. It was alleged that some of this material was then distributed by the Defendants to the Daily Telegraph and used as a basis for an article published on 18 April 2005 and also used in communication to the State Government as part of a lobbying campaign for legislation that was introduced Luna Park Site Amendment (Noise Control) Act 2005 to protect the operators of the Park from complaints of noise and claims for nuisance.
An application was made by the Plaintiffs that the Defendants had improperly used affidavits and expert reports in whole or in part (with all the information contained within them) for a purpose not directly connected with the conduct of the proceedings. It was alleged that this was in breach of an express or alternatively an implied undertaking to the Court.
An application before the primary judge was unsuccessful. The Applicants then appealed to the Court of Appeal who upheld the finding of Contempt. An appeal was then made to the High Court who handed down judgment on 6 August 2008.
The majority judgment in the High Court comprising HAYNE, HEYDON AND CRENNAN JJ found that;
"The Court should not allow any party – whether a party to the proceedings or not, to use documents for any ulterior or alien purpose. Used with knowledge of the circumstances of, and the source of the documentation would be an improper use.
Comment from Mark Streeter Sydney Lawyer
This case serves as a very useful restatement of the law of contempt. The prosecutor of the contempt were the parties in the litigation. It was a charge of “civil contempt”. In this case the Applicant (one the Plaintiffs in the action) became the “prosecutor”. The burden of proof is the civil burden.
It is necessary to specifically particularise the allegations against each of the Defendants. The Court Rules require the filing and service of a “statement of charge” setting out these details.
Parties, lawyers, their clients, experts and any other person who is provided access to documents obtained in the course of litigation should be very, very careful about how this information and documents are used and be mindful of the constraints imposed upon the parties. The documents produced in the course of legal proceedings were subject to the rule against their use for any other purposes apart from the proceedings. Once an affidavit is “read” in open court or evidence otherwise is provided through a witness, the evidence becomes “public” and accordingly the constraints described dissolve.
Some corporate fraud by employees is not premeditated. it is opportunistic. Sometimes temptation overrides common sense. It is important that businesses have in place mechanisms to prevent fraud.
In this video it explains a simple scenario. A laid off employee didn’t have his corporate credit card canceled. So he took advantage of it and went shopping and paid for a family holiday. Clearly it is illegal but the recovery of the money can be a distraction and expense your business could do without.
This video has some simple tips for companies to help reduce employee fraud. Streeterlaw's Mark Streeter has extensive experience in fraud cases.
Macquarie Bank's recorded phone calls used as evidence against them
What would you do if faced with a call on a margin loan of $160,000 from Macquarie Bank and given three working days to pay it? Over the past 12 months this has became a common situation in Australia, and around the world.
Last year one investor’s offer to meet the Bank’s call didn’t go exactly as planned and the Bank sold his shares at a substantial loss. However the Federal Court agreed that the investor’s efforts were sufficient to meet the Bank’s call. They ordered the Bank to compensate the investor. The Bank’s own recorded phone calls actually helped the case against them.
This court decision could impact every investor who uses margin lending arrangements.
Background to the case of Goodridge v Macquarie Bank Ltd and Leveraged Equities Ltd
Next time you hear the words “this call may be recorded for training purposes” it may just help you. Lawfully obtained ‘surveillance’, in this case recording of phone calls, were used in this court decision. This type of surveillance evidence is often most useful in the detection and proof of frauds but this case was different.
In the Federal Court decision on 12 February 2010 of Goodridge v Macquarie Bank Ltd and Leveraged Equities Ltd recorded telephone conversations were used to prove an aspect of the case. The Plaintiff is a Barrister (as a litigant in person) and he decided to take on the might of Macquarie Bank and Adelaide Bank.
The main issue was whether or not the Borrower had satisfied a Bank’s “call” under a Margin Loan.
On Thursday 5 February 2009 the Bank made a margin call upon the Borrower. This required a payment of nearly $160,000 be paid by the following Tuesday 10 February – or three business days.
The Borrower sought to negotiate an extension. The Borrower knew that 10 days after the deadline he would receive approximately $175,000 of dividends from these units. His offer was for the dividends to be paid directly to the Bank in satisfaction of the Call. The Bank verbally agreed to this offer in a phone conversation.
Recorded Phone Calls Used as Evidence
The Bank had a procedure for recording telephone calls of its customers and brokers. Two of these recordings were used in evidence as between the Borrower and the account manager.
As agreed the Borrower signed an authority and instruction directing the dividend from his investments be credited to the Bank. As part of a subsequent conversation the account manager told the Borrower that he had done his part and that it was “perfect”.
For an unexplained reason this authority was not acted upon and the dividend payment was still made directly to the Borrower’s bank account. It was then transferred to the Bank by the Borrower.
His Honour Justice Rares found that this action by the investor completely satisfied the margin call based on the evidence. The Plaintiff had successfully proven this aspect of his case using the Defendant’s own phone records.
Comment by Mark Streeter Sydney Lawyer
This case is illustrative of the high value Courts give to records held in objective media. These may include film, tape of voice recording or other electronic media such as emails, Skype or SMS records.
In a Court of Law it is not enough to be right. You must be able to prove, on the balance of probabilities, that you are right. In this situation the recorded phone calls were the proof that was needed.
However any surveillance evidence must be in admissible form. It must not be obtained illegally. Otherwise it cannot be used in a Court of Law. In Australia there are very strict rules regulating the collection of information and data.
This case actually involved two more margin loan calls with very interesting results. See the next blogpost.
Insider trading only became illegal in 1960's when it was felt some individuals had an unfair advantage over others with the buying and selling of stocks. In 2009 an article was published supporting a fairly radical idea for insider trading to be decriminalised again. It is a very controversial idea.
Since the 1960's insider trading regulations have continued to be expanded. The video includes a discussion that fraud and insider trading are often linked. The article's author believes is that allowing markets to drive stock prices to realistic values is fairer. The counter argument is that it still gives an unfair advantage to some.
For the author insider trading is not fraud but rather is more likely to expose corporate fraud. The video also highlights the relative lack of resources being used on examining and trying to prevent Insider Trading.
Protect your business from staff when they are leaving
The Australian Financial Review, on 15 October 2010, published a very helpful and insightful article called “Bosses’ Byte Back to Protect Secrets”. The article noted that the increased availability of USB memory sticks and mobile electronic storage devices (including IPODS, smart phones and portable hard drives) made it easier for employees to “steal” intellectual property, data and information and this is particularly more prevalent at or about the time that the worker resigns their employment.
One of the leading authorities quoted in the course of this article was Mr Warren Mallard, Managing Director of Lyonswood Investigations and Forensics. His firm provides Fraud investigation services that through the clever use of IT “data mining,” can forensically acquire the data from a computer hard disk and conclusively prove whether or not an employee has downloaded data from a computer or server.
The article also noted the use of Anton Piller and Mareva Orders now known as “Search” and “Freezing” orders where helpful in the process of finding and freezing the proceeds of these thefts.
The Association of Certified Fraud Examiners (ACFE) have a free report Occupational Fraud: A Study of the Impact of an Economic Recession available from their website.
ACFE President James D. Ratley, CFE says "Desperate people do desperate things. Loyal employees have bills to pay and families to feed. In a good economy, they would never think of committing fraud against their employers. But especially now, organizations must be vigilant during these turbulent times by ensuring proper fraud prevention procedures are in place."
The survey behind the report also found that:
* Employees pose the greatest fraud threat in the current economy. When asked which, if any, of several categories of fraud increased during the previous 12 months, the largest number of survey respondents (48 percent) indicated that embezzlement was on the rise.
* Layoffs are affecting organisations' internal control systems. Nearly 60 percent of CFEs who work as in-house fraud examiners reported that their companies had experienced layoffs during the past year. Among those who had experienced layoffs, almost 35 percent said their company had eliminated some controls, while 44.2 percent said the layoffs had no effect on controls and only 3.2 percent said their company had increased controls.
The survey was conducted in USA in February and March 2009. The findings are still of interest now in Australia.
Fraud can happen in any business. However non-profit organisations sometimes have looser controls so may be more susceptible to fraud. This video dramatisation below may be a little corny but the message about corporate fraud is good. The statistics about fraud are also interesting. More men commit corporate fraud than women.
The fraud video helps show how easy it can be for employees to take advantage of lack of business controls. Simple things like no double signing of cheques, not checking bank statements - or simply having too much control by only a few staff members.
Comment from Mark Streeter - Sydney Fraud Lawyer
Fraud is not always premeditated. Rather fraud can be opportunistic. Yet if fraud is not caught early employers can continue to abuse the situation and cause more damage to the business. If you suspect fraud give us a call.
Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off.
The Situation Blackmore and Webber  FMCA FAM 154
The couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004.
This judgment arose following an application by the wife to set aside a binding financial agreement on the following grounds:
a) There was a failure to comply with the formal requirements of section 90G
b) That the agreement was obtained by fraud under 90K (1)(a) including non-disclosure of a material matter
c) That pursuant section 90K(1)(b) the agreement was voidable or unenforceable in that it was obtained under duress
d) That pursuant to 90K(1)(e) the husband engaged in conduct that was in all the circumstances unconscionable
The Decision about the Binding Financial Agreement
The Court agreed with the wife that the agreement should be set aside on the basis of the husband’s “fraud” due to the non-disclosure (in circumstances where he had a positive obligation to disclose) of the value of the husband’s pension. Although not required to determine the ultimate question the court also would have found that there was duress where:
a) The binding agreement was first produced to the wife 5 days before their wedding
b) The husband told the wife the wedding would be off if she did not sign the agreement
c) The wife was four to five months pregnant with the husband’s child
d) There wife’s visa was due to expire had the wedding not proceeded the Visa would have expired and the wife would have to leave Australia
The Court also concluded that it would have been satisfied that the husband engaged in conduct that put the wife at a special disability.
The Court found that at the time of signing the Binding Financial Agreement the wife’s command of the English language was limited, that she was pregnant, that she lacked close family support and faced possible expulsion for the country if she did not marry.
Call me for an appointment to discuss any Binding Financial Agreements you may have, or wish to create.
Preventing or dealing with workplace fraud or theft takes work. Preparation is a big part of this. Even just saying you will be doing background checks during an interview process may help weed out some people from ever being hired.
Business owners should consider the level of risk their business is exposed to. Always presume innocence of staff. However ensure you have policies in place. Breach of these policies may allow you to dismiss staff much easier than simply suspecting them of theft or fraud. The American video below includes some practical tips if you want to initiate an investigation. Be very careful before making accusations of staff who may have been involved in workplace fraud.
Comment from Mark Streeter Fraud Lawyer
While this video suggests a do it yourself approach to fraud investigation it is pretty easy to see how it could get complicated. Streeterlaw are experienced in investigating workplace fraud. Acting quickly is important before evidence can be tampered with. Unfortunately taking the untrained approach, or relying on HR staff as promoted in the video can give the suspect too much time and power in the situation to cover tracks.
If you suspect workplace fraud or theft give Streeterlaw a call.
Insider trading laws in Australia have become far more relevant to the majority of the population. Traditionally insider trading was considered a white collar crime of a select few wealthy individuals with "inside" knowledge of businesses.
Australia now has one of the highest ownership of investment shares in the world. Therefore many Australians take an active interest in stock prices and follow the Australian share market closely. Good trading tips always seem welcome but be warned.
Insider trading is illegal in Australia. It is considered a white collar crime but it is also quite easy to overstep the mark as this cartoon video demonstrates. Click on the YouTube graphic below to watch a scenario of a not-too-ridiculous event. Seemingly innocent stock tips can land yourself and others in trouble. The 'best shares to buy' tips are not worth it if you end up with a criminal conviction.
Insider trading is difficult to prove without a paper trail but sometimes the signs are obvious. Studying the stock prices of major corporations over a one year period helped highlight that insider trading was taking place. In this Insider Trading video below it states 40% of stock prices leading up to mergers over $1b USA experience spikes BEFORE the announcement was made.
The continued policing and prosecuting of insider trading is seen as improving the credibility of the market and creating a more level the playing field for investors.
The reason insider trading is illegal is that one person, or group of people have an unfair advantage over others. In the perfect world no one would know more than anyone else. Obviously the world is not perfect.
Naturally some people must know information before it is made public. Businesses are continually evaluating opportunities and discussing strategies behind closed doors. This is not illegal. The reason insider trading laws have been created is to help ensure that those who are part of these discussions cannot unfairly profit from that prior or 'inside' knowledge.
The dramatic increase in online trading and buying shares has meant insider trading is no longer restricted to an elite group of business owners and their close friends. While a criminal insider trading case may be difficult to prove the financial services industry in Australia has gone through many changes over recent years. The restrictions on giving financial advice are complex. The need for clear documentation and explanations around advice given has increased dramatically. Simply asking your friends "what's the best shares to buy" is no longer so simple.
In this video below it gives advice on what to do if you suspect insider trading. It also suggests you walk away rather than be tempted to make use of inside information you may have received.
Business fraud is an increasing problem not only in Australia. In this American video forensic accountant and anti-fraud director, Lance Randolph of CBIZ MHM, discusses the two most common fraud schemes facing corporate America today. The situation in Australia is similar with corporate fraud done by a company's own staff a serious issue. Protecting your business from fraud can be a matter of having simple procedures in place.
It is amazing that simply "writing a cheque" is the easiest way for businesses to be de-frauded by their own employee(s). The second one is the use of counterfeit cheques.
An expensive lesson in breaching a Contract of Employment
When you hire someone to do a job it is natural to expect them to not only do the job but to not help a direct competitor. Failure to do this proved to be an expensive error.
The Facts of Dinte v. Hales & Anor  QSC 63 (25 March 2009)
Dinte, the Plaintiff in this action, hired Hales and Campbell to provide services to his business trading as Skycomm. Hales held the position of “Service Manager” which included responsibilities for selling and servicing mobile communications equipment as a “premier dealer” for Motorola.
In the course of, and after his engagement with Skycomm, the Defendants entered into a partnership trading under the name of Dapcomm. Dapcomm operated in common areas of business as Skycomm; The two business were competing.
The claim was brought by Hales alleging that Hales had breached his implied term of Contract of Employment and his equitable duties owed to the Plaintiff as his employer. Furthermore it was alleged that upon termination of employment, Hales retained copies of confidential information including lists of clients and customers together with commercially sensitive information which was used for the purposes of Dapcomm. It was alleged that Cambpell knew and approved of and assisted Hales in the impugned conduct and benefited from it.
Recovery of Damages more than loss of sales
The Plaintiff sued for damages. The Judge found that Hales was in breach of his obligations to Dinte and dishonestly diverted custom to the Dapcomm partnership through opportunities that were made available to him by virtue of his employment with Dinte.
This case is interesting because not only did the Court, having found liability, make an award of damages in the sum of $67,533.19 for loss of the diverted business but the Court also considered, as a consequence of the business diverted away from the Plaintiff’s business, that he should be compensated for loss of value of the business. The loss of value of the business was calculated by using the amount of diverted business in the last financial year ($38,000) and taking the multiplier of 3.8 x EBIT which equated to $144,400.
Comment from Mark Streeter Sydney Lawyer
There are some important lessons to be learned from this case. This is an important decision in assessing and quantifying damages for recovery of Fraud in businesses. Employees may divert business opportunities to themselves or other parties or merely destroy business opportunities. This may result in damages in excess of just the lost revenue for that financial year.
In this case the business was sold within a year after the Defendants had diverted the business but before the case went to hearing. Accordingly the “loss” of goodwill was realised by the lower sale price obtained as a consequence of the reduced earnings because of the diverted business.
This case is consistent with the principles set down in To Robinson v Harman (1848) where Baron Parker said: Where a party sustains loss by breach of a contract, he is, as far as money can do it to be placed in the same position, with respect to damages, as if the contract had been performed.
In this case the Plaintiff had lost the business but had also lost value in his business by way of goodwill (calculated as a multiple of EBIT) and suffered a reduced price in the sale of the business as a consequence.
When ASIC investigators give you a notice of examination it means they believe you have information which will help them in an investigation. You do not have the "right of silence".
A businessman who had had dealings with a particular Company and had purchased a substantial amount of goods and services from it and was then issued a notice under Section 19 of the Australian Securities and Investments Commission Act 2001 (the ‘ASIC Act’) requiring the businessman to appear for examination on oath and answer questions put to him by ASIC investigators.
ASIC has the power to require a person to attend to be examined if it believes, on reasonably grounds, or suspects or believes that a particular person can give information relevant to a matter that it is investigating under Division 1 of Part 3 of the ASIC Act.
The notice to the proposed person to be examined may require them to give ASIC all reasonably assistance in connection with their investigation; including answering questions put to them by the ASIC investigators or deliver up documents.
What Protections do you have?
There are limited protections afforded to the examinee. Unlike the police, you do not have an unqualified “right” to silence. If you refuse to answer or provide this responsible assistance you may be liable for contempt of ASIC or contempt of the ASIC Act and liable for substantial penalties. You are permitted to take a lawyer with you to attend the examination and you are permitted to claim the protection under Section 128 of the Evidence Act 1995 (Cth) in respect of privilege against self-incrimination.
Section 68(3) of the ASIC Act limits the scope of the protection against self-incrimination and excludes the proceedings specified in Section 1349 of the Corporations Act 2001.
You may maintain the protection in respect of Solicitor Client Legal Professional Privilege.
How does The Examination work?
Section 22 provides that the examination is to be in private and often the ASIC investigator will provide a direction that no question, information, document or anything related thereto can be discussed to any other person for a period of in access of a year.
Evidence will be required to be provided under oath or affirmation and failure to comply without reasonable excuse will expose the person to a penalty of $11,000.00 or 2 years in prison or both. Often there is a record of the examination and Section 24 provides that there may be a transcript and if this transcript is reduced to writing a copy will be provided to the examinee who may be required to read it and sign it.
In some cases you will not even be able to tell your business colleagues why you were required to be out of the office for the day!
Comments from Mark Streeter Sydney Lawyer
There are important lessons to be learnt.
Treat this examination process very seriously
If you are in receipt of a notice of examination you should immediately seek independent legal advice
You should not rely this information memorandum as anything but general information.
Quick Action and Freezing Order in $300K Fraud Case
The Facts of Norco Co-Operative Limited v Kelly  NSWSC 719
HK worked for Norco from 26 March 2001 to 10 February 2009. In the course of her employment she fraudulently and dishonourably misappropriate amounts totaling at least $316,657.98!
These funds were used to pay off mortgages on properties she owned and also mortgages on properties she jointly owned with her life partner.
Upon discovery of the misappropriation, Norco made an urgent application for a “freezing order” which was granted on 19 March 2009. This order prevented HK from removing from Australia or in any way disposing of or dealing with or diminishing the value of any of her assets in Australia up to the unencumbered value of $375,000.00.
Shortly before the “discovery”, HK transferred to her life partner title in one of the properties for nil consideration. His Honour Justice Lindgren found that Norco had an “equitable charge” over these properties but found the amount of the charge was limited to the amount of the misappropriated funds that had paid off the mortgage over the particular property. It did not amount to a charge over each property for the full amount of the misappropriated funds.
Comment from Mark Streeter, Sydney Lawyer
This case uses the principle of constructive trust to “trace” the proceeds of the fraud. As her life partner had not taken the property as a “bona fide” purchaser without knowledge and for fair value, the life partner did not have a basis for resisting a claim by Norco.
This case teaches an important lesson. Act quickly to firstly freeze and then recovery misappropriated monies or property or assets. It may be possible to “trace” monies and obtain a secured position under an equitable charge (as illustrated by the Norco decision).
Man pays child support for six years before DNA reveals he is not the father
An expensive Child Support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.
The facts of Forsythe & Latimer & Anor  FMCAfam 478 (8 June 2010)
A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.
The recipient of the funds was in strained financial circumstances. Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.
The mother commenced a relationship with the payer in November 1997 which continued to June 1998. They did not live together but they had a relationship which included sexual intercourse.
On an occasion in December 1997 the mother had a “one night stand” following an event at a pub. She does not recall this man’s name nor have any of his contact details. The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.
After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002. After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008. Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child. After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.
The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act. The relevant criteria is as follows:
(a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e) the relationship between the payer and the child;
(f) the financial circumstances of the payee and the payer.
Comment from Mark Streeter Sydney Lawyer
Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.
This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!
When USA based WorldCom Inc fell victim to an $11 billion accounting scandal it resulted in the company filing bankruptcy. In 2002 it was the largest bankruptcy in U.S. history. Corporate Fraud occurs in Australian businesses. Most business fraud is opportunistic so could be prevented.
Some of the lessons learned in the WorldCom collapse are explained in a video called Fraud and the Tone at the Top . This is a training video designed to help business owners prevent corporate fraud.
The video includes interviews with one of those charged and sentenced to a gaol term for their role in commercial fraud.
He explains how he was able, and even encouraged to manipulate accounting records. The culture of the leaders encouraged questionable ethics and even them having a written “Code of Ethics” was seen as helping staff avoid moral analysis of their actions.
Some of the commercial fraud started seemingly innocently enough with delaying write offs of accounts receivables. As staff were remumnerated on profit and results there was incentive to make revenues look better than they actually were. Actions were justified with a belief that they could be fixed in the future when things improved.
The setting of unreasonable goals combined with poor communication is seen as partly to blame for the fraud. Where loyalty is not displayed staff can become loyal only to themselves
The video is a reminder that preventing corporate fraud is good business.
Solicitor resigns and fights against signed employment agreement
In recent years the pros and cons of employment contracts have been hotly debated. When a Solicitor in a country town resigned from his firm to work for another he was accused of being in breach of his employment contract. It was up to the Supreme Court of New South Wales to decide what “restraint of trade” in employment agreements could apply to the solicitor and what was unreasonable.
Explanation of Restraint of Trade
A common term of an employment contract, or contract of sale of business, is a “restraint of trade”. These clauses restrict or limit the competitive activities of the seller or the employee. This is to protect the goodwill and “value” of the purchaser. A 2010 decision in the Supreme Court of New South Wales shows the limitations of these clauses being binding.
The facts of the Employment Contract
M was employed as a solicitor by a firm in Taree and had signed a contract of employment. The contract of employment contained three restraints which were to apply following the cessation of employment. These were to apply whether he resigned, was dismissed or they agreed on a mutual termination. The Restraints were:
1. Prohibition against soliciting Clients of the Firm. (A Client of the Firm was defined to mean someone who is at termination, or during the preceding one year had engaged the firm).
2. Prohibition against soliciting employees to leave the firm and related companies.
3. Prohibition on engaging in “Competitive Activity”. The definition of Competitive Activity is "any activity which involves carrying on either alone, as a director or in partnership with any person or persons or as an employee of any person or persons the business or profession of a lawyer within ten (10) kilometres of the post offices at Taree or Wingham".
On or about 27 November 2009 M resigned his employment from the firm. He expected he could stay in the town where he lived and obtained employment with another local firm. His previous employer commenced proceedings. They sought to restrain M by Court order from working for his new employer due to it being a contravention of the employment agreement.
Such a case could at times drag on. However as there was a need for the solicitor to have gainful employment and the requirement that the issues and construction of the restraint of trade clauses be construed quickly, the hearing was speeded up. Judgment by Justice McDougall J was handed down on the 28th of January 2010.
M ceased employment with the firm on 27 November 2009.
Clause 13 of his contract of employment imposed three restraints, each of them to be effective for 12 months.
His Honour Justice McDougall restated the rule that a restraint of trade could be justified insofar as it is no more than is necessary for the reasonable protection of the legitimate interests of the plaintiff. In the circumstances and in the particular facts of this case, the plaintiff’s interests were identified as the goodwill of its legal practice. The plaintiff identified a legitimate interest that was capable of being the subject of restraint and led evidence that the firm had introduced the employee to clients of the firm.
M offered undertakings to the Court to abide by the second restraint of not soliciting other employees to leave. The scope of the second and the third restraints were what were being questioned.
In respect of the First Restraint, His Honour was asked to determine whether or not the restraint against solicitation should be limited to clients of the firm for whom the defendant had provided legal services. In it's original form it was worded to extend to all clients of the firm generally. That is any client of the firm whether or not the employee had any contact or association with the client. His Honour determined (at paragraph nine) that the restraint should be limited to the solicitation of clients of the firm for whom the defendant had performed work (or legal services) in the preceding 12 months.
In deciding how long this restraint should take place His Honour considered this to be a question partly of principle and partly of fact. His Honour found support in the view that the length of time should reflect the amount of time taken to end the connection between the client and the employee and how long it would take to train up someone else to fill the employee’s place. His Honour found 12 months to be justified on the evidence. Accordingly His Honour read down the restraint against solicitation of clients with whom the defendant had not worked with.
The Third Restraint was the most contentious. It provided a prohibition on competition on an absolute basis within a 10 kilometre radius of the designated places. This was not only a restriction on acting for clients of the firm but anyone (and everyone) else within this area. Taree and the surrounding countryside has a population of 48,000. Due to the size of the town the 10 km restraint covered the entire town.
His Honour was mindful that it was his role to assess what was reasonably necessary in all the particular circumstances of this case having regard to the application of principles established by previous cases.
His Honour found that the Third Restraint was a blanket covenant against competition. It protected not only the plaintiff’s legitimate interests in its own clients but also competition in respect of those who are not, nor had never been its clients. His Honour found that the Third Restraint went further than was reasonably necessary for the protection of the firm and did not consider this restraint reasonable.
His Honour also determined the question of costs. Acknowledging that costs generally follow the event and each party had had a “measure of success”. Nevertheless, His Honour ordered that the Plaintiff pay 80% of the Defendant’s costs of the proceedings.
Comment from Mark Streeter Sydney Lawyer
The Restraint of Trade Act 1976 (NSW) is a very small piece of legislation. The full Act is only four sections. The Restraint of Trade Act provides that ‘Restraints’ are valid to the extent to which it is not against public policy, whether they are in severable terms or not and empowers the Supreme Court to set aside a restraint of trade on the basis that it is offensive to public policy.
Sub section 4(3) provides that the Supreme Court may, on such terms as it thinks fit, order the restraint be invalid or accordingly valid only to the extent the court thinks fit.
How does a Court determine whether or not a restraint of trade infringes public policy? – That’s why it’s helpful to read this judgment as an exposition of principle. The Act is not limited to employment contracts but could also be applied to shareholder agreements or partnership contracts.
Many people wonder what can and can't a bankrupt individual do when they are declared bankrupt?
Bankruptcy has serious effects on the individual. Upon becoming bankrupt almost all of their property goes to (‘vests in’) the persons Trustee in Bankruptcy.
It is then an offense for an undischarged bankrupt person to engage in the following:
a) Obtain credit or enter a commercial transaction for value in excess of $4,623.00 without disclosing that they are bankrupt.
b) To carry on a business under an assume name without disclosing the true name and status of bankruptcy.
c) May not leave Australia or do any act to prepare to leave Australia without the permission of the persons Trustee in Bankruptcy.
Property acquired by the person after being made Bankrupt but before being discharged from Bankruptcy is generally divisible among creditors.
If the bankrupt was in a partnership this partnership is automatically dissolved by becoming bankrupt unless specifically agreed in the partnership agreement to be otherwise.
The bankrupt cannot be:
a) A director of a company.
b) A member of the Local Council, a Member of House of representatives or the Senate or a member of the State or Territory Houses of Parliament.
c) Any civil action commenced by the bankrupt (before they became bankrupt) is “stayed” until the Trustee elects to pursue or discontinue the action.
An Australian company had an extremely well developed website. Hundreds of hours had gone into its development in optimising design and content to inform and direct new business. A competitor was accused of “cutting and pasting” significant portions of text from the company web site onto their own website.
Streeterlaw wrote a letter of demand requesting the removal of the infringing text from the website. Only part of the text was removed in response to the letter of demand. Urgent proceedings were then commenced in the court seeking an injunction requiring the removal of the offending text within two days.
The Defendant provided an “enforceable” undertaking to the Court that they would remove the text. The deadline for removal of the offending text expired without compliance with the enforceable undertaking. Streeterlaw sought enforcement orders and filed an application for contempt joining the Directors of the defendant corporation as a further respondent and defendant to the action.
The situation was resolved with the offending text being removed. The defendant company paid all legal costs plus a confidential sum for damages.
This is just one example of Streeterlaw's very precise strategy for clients. Protect your intellectual property. Call Streeterlaw for a free no-obligation phone consultation.
Insider trading is illegal in Australia… but what is an insider trading definition?
The simplest definition of Insider Trading is taking advantage of information that is not public.
This 'inside' information is most often seen as being used to give someone an unfair advantage in the buying or selling of shares or stocks.
Australians are now more likely to personally own shares in companies in which we work or where a member of our family or close friends work. When you include superannuation even more Australians own stocks and shares. Everyone would appreciate knowing ahead of time if a stock is likely to rise, or if it is about to fall.
It is considered natural to ask friends or family who work for companies on the Australian stock exchange for insider information on trading tips of shares. Your innocent question over a BBQ of "what's happening at work?" could however land you, and your friend, in court facing insider trading penalties? It depends on whether the information being shared is already 'public' knowledge. If your friend’s answer convinced you something significant was about to happen and that you should be selling, or buying, shares then a court may consider it insider trading?
Likewise how would the law courts consider if you saw a confidential report on the photocopier at work about a major loss or new investment and bought or sold shares? What if based on the information you had seen you told some friends or family to expect shares prices to change? Insider trading can appear quite innocent, but the reason Australian Courts treat it as a crime is that it gives 'insiders' an unfair advantage over the general public.
This video includes a brief definition of insider trading.
A surprise trip to the Philippines reveals more surprises for a husband.
A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void.
Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time of the marriage, lawfully married to some other person.
In the case of MONTY & VILLAMONT, the husband married a lady of Filipino nationality in October 2007. The wife then returned to the Republic of the Philippines.
The husband traveled to the Philippines on a surprise visit in 2008. He discovered that the wife was in a relationship with another man with whom she had two children. The husband then conducted a search with a Republic of Philippines national statistics office which provided a document evidencing the wife’s marriage to another person in May 1995. With the assistance of the Australian Department of Immigration the husband confirmed that the wife was still married to the other person at the time of their marriage in October 2007.
The primary evidence in support of the application were documents including documents from a foreign jurisdiction; Nevertheless the Family Court was satisfied that at the time of the marriage the wife was lawfully married to another person and granted an order of nullity and made a declaration accordingly.
Comment from Mark Streeter Sydney Family Law Lawyer
A further complicating factor in this case was the husband’s inability to ‘serve’ the Application for nullity upon the wife. The Court rules require that documents filed in Court including an “Initiating Application” must be personally received by the other person. The Family Law Rules further provide for the means by which service can be “proved” to the satisfaction of the Court. Rule 7.18 of the Family Law Rules 2004 however provides the Court with the power to modify the requirements of the rules relating to service or alternatively to dispense with it altogether. In this case the whereabouts of the wife was unknown.
An old facebook entry indicated that the wife was potentially living in Canada. The husband did not have the financial resources to conduct searches in Canada and enquiries with the relatives of the wife in the Philippines had indicated that she was no longer living in the Philippines and by the time of the hearing the wife’s facebook profile had been removed.
Justice O’Reilly was satisfied that the steps taken by the husband to search and serve the wife were exhaustive and ordered that the service of the Initiating Application and affidavit filed in support be dispensed with.
The USA based Association of Certified Fraud Examiners (ACFE) provide some valuable resources. Workplace Fraud is a serious issue in Australia. Tools like their Fraud Prevention Checkup may assist you to consider what practical steps you can take to reduce workplace fraud.
The ACFE is the world's largest anti-fraud organisation. Streeterlaw Sydney Law Firm also have available a free White Paper for businesses.