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It’s all fun and games until….

Posted by | Sarah Radovanovic | No Comments

With more and more businesses and companies returning to normal after COVID-19, a recent decision by the District Court in Western Australia, Kremer v Sandfire Resources NL [2020] WADC 130 offers a timely reminder that there is nothing wrong about trying to lift office spirits.

A mining company organised a “fun” evening for its staff involving a “sporty parody, horse themed, site social event”. The invitation to employees also stated:

“Please note there are three main rules to this event:
Have fun!
No injuries. If you have a sore back don’t volunteer to be a horse or rider. Readings of 000 are expected the next morning so have fun and be responsible.”

Towards the end of the evening two employees “raced off” to decide last place. They had to complete a short circuit with a child’s hobby horse between their legs. In this pursuit one of the employees – in an attempt to win, began running without the hobby horse and fell over causing himself a shoulder injury.

He sued the company and its employees for failing to adequately supervise and/or failure to conduct any or any adequate risk assessment of the event.

The Court, in dismissing the claim, said “This was a fun event” and just because there might have been an element of competition, that, in these circumstances, did not give rise to some heightened risk of foreseeable injury. There was no evidence of inappropriate provision of alcohol. The nature of the fun social event did not require a formal risk assessment process. “No amount of training or supervision would have prevented one participant in this race accidentally tripping or entangling with another participant so as to cause him to fall.”

Personal responsibility, thankfully, is alive and well.

If you are planning a social event:

(a) keep it sensible, fun and within normal bounds;
(b) don’t allow over-indulgence in alcohol; and
(c) warn against and prevent against silly or dangerous behaviours by individuals.

Otherwise the case is a reminder that there is still a responsibility on individuals, employees to take responsibility for their own actions.

If you have an employee or workplace issue contact Sarah Radovanovic.

Phone: 9221 5326
Email: sarahr@mdk.com.au

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COVID-19 Business Strategies

Posted by | Mark de Kerloy | No Comments

In light of the rapid rise of the COVID-19 pandemic and the unprecedented issues that businesses now face, MDK directors are available for urgent conference calls to discuss your business strategy during this difficult period.

  • Find out what you can and cannot do with debt, leases and government commitments.
  • Determine your obligations to your employees and their entitlements.
  • Check your financial health.

We are available via video link, or teleconference for an agreed set fee.

Contact our offices on 9221 5326 or email mdk@mdk.com.au to schedule an appointment.

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IDIM – A Programme To Prevent Regulatory Interference Or Worse

Posted by | Solicitor, Thomas Prior | No Comments
  1. Identify risk areas/risky behaviours in your business.
  2. Determine what behaviours and processes need to change and how.
  3. Implement the change through staff notifications and training.
  4. Monitor compliance.

Corporate businesses are subject to constant regulation and need to ensure legislative compliance.

Whether in the areas of financial probity and regulation, professional licensing or regulatory requirements or health and safety, you do not want to come unstuck because of the conduct of one or more managers or employees.

In the current heavily regulated marketplace, you need to be pro-active.

Getting on the front foot with a sensible, directed compliance programme will reduce your risk and, if the worst happens, stand your business and company in good stead with the regulators as being pro-active and aware.

IDIM is a tailored compliance programme for your business and company.

If you wish to learn more about its benefits to you contact Thomas Prior on 9221 5326 or contact by email on   tprior@mdk.com.au

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Approaches To Being The Subject Of A Criminal Or Regulatory Investigation

Posted by | Nick de Kerloy, Solicitor | No Comments

Being the subject of a serious criminal or regulatory investigation is highly stressful and potentially career ending.

Investigations usually follow an allegation against you.  You can also be caught up in an investigation of someone else’s conduct.

The most important advice that you can be given, if you are caught up in such an investigation, is to not go it alone or think you can handle it.  You cannot. A natural reaction in such a situation is to show how strong and brave you are – and how disdainful the allegations are.  Another is to immediately go into denial mode.  Those are exactly the wrong reactions.

Having been involved with clients caught up in insider trading allegations, serious regulatory breaches, accusations of corporate misconduct or allegations of criminal conduct, the most important thing to do is to assemble a defence team – and let that team handle the allegations.

That step achieves three basic ends – all critical to you either resolving the allegations or minimising the damage:

  1. It removes you from the direct firing line – allowing you to regroup and get back onto an even keel. You also, now, have an independent sounding board which is important to your own well being.
  2. It slows things down allowing the facts to be brought out without concentrating on you.
  3. It signals to the investigators that you are taking their investigation seriously – a point which will stand you in good stead going forward.

Once a team is assembled and, with your input, options become available to you.  Importantly you will know exactly where you stand – and how best to move from there.

Time and again we have seen clients – after their own attempts to knock allegations against them into a cocked hat have been spectacularly unsuccessful – who are broken and behind the eight ball.  In those circumstances it is much harder to pick up the pieces.

When confronted with a serous investigation – whether it be criminal, corporate or regulatory within your trade or profession, get advice and help immediately.

If you are the subject of such an investigation or are likely to be, you can call either Mark de Kerloy or Nicholas de Kerloy for confidential advice on 9221 5326 or contact by email mdekerloy@mdk.com.au     or     nicholas@mdk.com.au

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Duty of a Creditor to a Guarantor

Posted by | Solicitor | No Comments

Duty of a Creditor to a Guarantor

If you are involved in a contract which is secured by both security and a guarantee then it is important to note that the creditor will owe the guarantor equitable duties on top of any contractual duties.

In the recent case of Webster Investments Pty Ltd v Anderson [2016] VSC 620 a judge of the Victorian Supreme Court has clarified the consequences of failing to adhere to these duties. In that case the guarantor was entirely released from any obligation to guarantee the debt.

While the exact scope of the duties is not yet settled at law, they have been expressed as follows:

  1. A creditor has a duty to a guarantor to take reasonable care and not act in neglect or default when dealing with security; and
  2. A creditor has a duty to a guarantor to not diminish or release security.

What will amount to a breach of the duty

In Williams v Frayne (1937) 58 CLR 710 the High Court recognised the right of a guarantor of a secured debt to show that their liability to the secured creditor has been reduced or entirely avoided due to a creditor’s flawed dealings with the security. What amounts to flawed dealings with security will vary in each case and depends upon the circumstances, including the nature of the security taken and the conditions placed on it.

However, creditors and guarantors should be aware that it may include poor conduct in the sale of the security which has meant its true value has not been realised. Another example is where the security is released without the guarantors consent.

For a breach of duty to be actionable, a guarantor must prove that they have suffered loss as a result. An example is provided in Bank of Victoria v Smith (1894) 20 VLR 450 where security in the form of shares was released by a creditor, only to be replaced by other shares. The Court noted that if they were of the same value then no injury would be suffered and the creditor would not have breached their duty to the guarantor.

Consequences

If a creditor breaches the duties owed to a guarantor and a guarantor has suffered loss, it is open to a Court to either reduce the guarantor’s liability by the amount the value of the contractual security is reduced, or alternatively to completely absolve the guarantor of their obligation to guarantee the debt.

In Webster Investments Pty Ltd v Anderson [2016] VSC 620 it was found that, at least in cases where a creditor has acted with gross misconduct or fraud, the guarantor may be released from their contract entirely. In other cases, where the creditor’s actions amount only to negligence or misconduct the appropriate remedy may be to reduce the guarantor’s liability by the same amount of the reduction of the security.

Therefore in cases where a creditor’s breach of duty does not amount to gross misconduct or fraud a guarantor may still owe money to a creditor where the guaranteed debt is greater than the value that the security has been diminished.

Contractual Erosion of Protection

It is also important to note that it is open to the creditor and guarantor to exclude the above duties when they enter into a contract. This means in a contract with a guarantor, a creditor can include a clause which allows it to deal with the security in any way it chooses and excludes liability to the guarantor if the creditor releases or impairs the security to the contract. In the case of Duncombe v ANZ Bank [1970] WD R 202 it was explained that if such a clause is inserted into a contract it will be construed strictly against the creditor. This means that any such clause which tries to exclude liability must be drafted carefully to ensure a Court gives it a full effect.

 

For more information, contact Thomas Camp at Thomas@mdk.com.au