Insolvency, Litigation and Dispute Resolution

Can an unsent text message amount to a will?

13 October, 2017
  1. On 18 September 2017 the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (the Safe Harbour and Ipso Facto Act) became law.
  2. The Safe Harbour reforms introduced in the Safe Harbour and Ipso Facto Act create a safe harbour for company directors from personal liability for insolvent trading if the company is undertaking a restructure outside formal insolvency processes. The aim of the reforms is to encourage company directors to engage early with financial hardship, keep control of their companies and take reasonable steps to pursue a corporate restructure. The Safe Harbour reforms came into effect on 19 September 2017.
  3. The Ipso Facto reforms introduced in the Safe Harbour and Ipso Facto Act impose restrictions on the enforcement of ipso facto clauses in contracts, to facilitate restructures through voluntary administrations, schemes of arrangements, and during receiverships. The Ipso Facto reforms introduce a stay on the enforcement of contractual rights when a company has entered a formal insolvency process to restructure.  The Ipso Facto provisions will come into effect on 1 July 2018 (or earlier by proclamation).

Background to the reforms

The Safe Harbour and Ipso Facto bill stems from recommendations made by the Productivity Commission in its 2015 Inquiry Report: Business Set-Up, Transfer and Closure.  As a result of the recommendations in that report the safe harbour and ipso facto initiatives were included in the Federal Government’s national innovation and science agenda in 2015.

The purpose of the reforms is to amend the Corporations Act 2001 to promote a culture of entrepreneurship and innovation and reduce the stigma associated with business failure, to drive business growth and encourage risk.  The reforms are also designed to enable viable businesses to continue to trade on in order to recover from an insolvency event.

According to the Productivity Commission, concerns over inadvertent breaches of insolvent trading laws are frequently cited as a reason why early stage investors (also called angel investors) and professional directors are reluctant to become involved in start-ups.

The Safe Harbour reforms

The new safe harbour reforms create a legislative carve-out from the personal liability for debts incurred while a company is insolvent imposed on directors of a company by section 588G(2) of the Corporations Act 2001 (Cth) (Corporations Act).  Under the new section 588GA of the Corporations Act, the insolvent trading liability provisions do not apply to a director in respect of a debt if:

  1. At a particular time after the person starts to suspect the company may become or be insolvent, the person starts developing one or more courses of action that are reasonably likely to lead to a better outcome for the company; and
  2. The debt is incurred directly or indirectly in connection with such a course of action.

A better outcome is defined in section 588GA(7) of the Corporations Act as “an outcome that is better for the company than the immediate appointment of an administrator, or liquidator, of the company”. 

For the purposes of working out whether a course of action is reasonably likely to lead to a better outcome for the company, section 588GA(2) provides that regard may be had to a number of factors including whether the person is properly informing themselves of the company’s financial position, whether they have taken steps to prevent misconduct by officers or employees of the company, whether they have taken steps to ensure the company is keeping appropriate records, whether they are obtaining advice from an appropriately qualified and informed entity, or whether the person is developing a plan for restructure which is designed to improve the company’s financial position.

While the safe harbour reforms do not provide any specification on who may be an “appropriately qualified entity” to provide advice in relation to a restructure, the parliament considered and rejected a proposal that this be limited to registered liquidators, providing directors with increased flexibility in their options for obtaining advice.  However, since the onus of proving that the safe harbour should apply lies with the person who seeks to rely on the safe harbour, it would be prudent for directors to take qualified advice from reputable organisations or individuals.

It ought to be noted that a director is unable to rely on the safe harbour provisions in respect of a debt incurred by a company if the company is failing to pay employee entitlements, failing to comply with taxation law requirements, or if the director does comply with the reporting requirements to an external administrator.  In addition, a director may not rely on books and records of the company to support a safe harbour position if they fail to permit the inspection of or deliver up the books of the company to an external administrator.

Ipso facto reforms

Ipso facto refers to contractual rights that allow one party to a contract to terminate or modify the operation of a contract upon the occurrence of a particular event.  The Ipso Facto reforms are designed to prevent the enforcement of ipso facto clauses which are triggered by a company entering into a formal restructuring process, including administration or receivership.  The concern is that ipso facto clauses reduce the scope for a successful restructure of a business, or prevent the sale of a business as a going concern.

The Ipso Facto reforms are designed to prevent companies having their major contracts cancelled and the value of the company’s business significantly impacted or destroyed if they are experiencing temporary financial difficulties.  The amendments to the Corporations Act introduced by the Safe Harbour and Ipso Facto Act prevent one party to a contract from terminating a contract simply because of the financial position of the other party.  However, the reforms introduced to the Corporations Act do not prevent stop parties from terminating a contract with a company for any other valid reason, including non-payment or non-performance.

The new provisions of the Corporations Act introduce a stay on enforcing rights in circumstances where:

  1. A company enters into a scheme or arrangement (or announces it will enter into a scheme of arrangement) to avoid being would up in insolvency (section 415D);
  2. A managing controller/receiver is appointed to a company (section 434J);
  3. A company goes into administration (section 451E).

The Corporations Act has also been amended to provide the court with powers to override the stay if satisfied that it is appropriate to do so in the interests of justice, and powers to prevent the avoidance of the provisions by ordering that certain contractual rights which have been enforced merely because the company has entered into one of the relevant formal restructuring processes are enforceable only with leave of the Court, and on certain conditions.

The Ipso Facto provisions will not apply to contractual rights prescribed in the regulations, declared in a Ministerial declaration, or set out in agreements made after the commencement of the relevant formal restructuring process.

The Ipso Facto provisions will be an important consideration over the next six months when negotiating new contracts, or renegotiating existing agreements.  It is important to note that the new provisions will only apply to contracts, agreements or arrangements entered into from the commencement time of the ipso facto provisions.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023