Allens

Disputes & Investigations

Our experienced Disputes & Investigations legal team regularly publishes articles and updates – the full list of publications appears below. If you'd like to be notified when we add new Disputes & Investigations publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

Read about our track record in Disputes & Investigations.

Disputes & Investigations Publications

  • Focus: ASIC's sanctions and powers to be strengthened

    23 April 2018

    The Federal Government has announced that it proposes to strengthen ASIC's powers, and to increase the severity of penalties (civil and criminal) that can be imposed on individuals and corporations, in line with the ASIC Enforcement Review Taskforce's recommendations. Partner Rachel Nicolson and Senior Overseas Practitioner Chris Kerrigan report.

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  • Focus: Federal Court homes in on Anti-Dumping Commission's calculation of duties on Chinese steel imports

    11 April 2018

    In a rare appellate court decision dealing with anti-dumping law, the Full Court of the Federal Court of Australia has clarified that the Anti-Dumping Commission's ability to calculate hypothetical amounts for the purposes of determining normal value is not at large, and must conform strictly with anti-dumping legislation. Partner Louise Jenkins, Associate Chadwick Wong and Law Graduate Oliver Lloyd report on what this means for future anti-dumping investigations, in the context of an increasing global focus on barriers to free trade.

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  • Contract Law Update 2017

    7 March 2018

    The phrase 'ready and willing to perform a contract' is very familiar to lawyers. But what exactly does it mean, and why is it important? The NSW Court of Appeal gave the answer last year in one of many interesting appellate decisions summarised in our annual Contract Law Update. Some other principles considered during the year include: When can a purchaser terminate a share purchase agreement following due diligence? When will illegality prevent a contract being enforced? What is the latest on the Bellgrove Principle? When does a new contract terminate an earlier contract between the same parties? We also look at the latest cases on contractual interpretation, contract formation and the penalties doctrine.

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  • Linklaters Insights: Anti-bribery and corruption law and enforcement across the globe

    24 January 2018

    Understanding the global reach of anti-bribery and corruption regulation, as well as the application of it within a specific jurisdiction, is key to managing risk for international businesses. Our global alliance partner, with input from Allens, examines 24 jurisdictions across the Asia-Pacific, Europe, Africa and the Americas and provides at-a-glance answers to eight key questions, as well as updates on new legislation and penalty increases.

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  • Linklaters Insights: Business Crime Quarterly

    19 January 2018

    In the Business Crime Quarterly Autumn 2017 edition, our global alliance partner Linklaters examined the extent to which international regulators and prosecutors are increasingly working together to tackle economic crime. We contributed summaries on the recently published judgment in the Tabcorp civil penalty proceedings for breach of the AML/CTF regime and the proposed changes to Australia's whistleblower framework.

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  • Client Update: Attorney-General announces class action inquiry

    18 December 2017

    The Attorney-General has announced that he has asked the Australian Law Reform Commission to inquire into class action proceedings and third party litigation funders. The inquiry presents an important opportunity to take stock of how the class actions landscape has evolved, particularly whether entrepreneurialism among promoters is inappropriately traversing on the rights of class members. Partner Jenny Campbell and Lawyer Jerome Squires report.

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  • Client Update: ASIC recommends tougher corporate penalties

    24 October 2017

    The ASIC Enforcement Taskforce's latest consultation paper pushes for a tougher penalty regime for corporate and financial sector misconduct, which has been key focus of the Taskforce's Terms of Reference, and indeed of ASIC's reform agenda for some time. Partner Belinda Thompson, Senior Associate Michela Agnoletti and Associate Katie Gardiner look at what the consultation paper proposes.

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  • Focus: Subpoenas under the IAA: foreign-seated arbitrations need not apply

    18 October 2017

    A recent Federal Court decision suggests a narrow approach to judicial support of international arbitrations, limiting access to evidence located in Australia for parties of foreign-seated arbitrations. Partner Nick Rudge and Overseas Lawyer Caroline Swartz-Zern report.

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  • Client Update: Security of the Cape Preston port affirmed in appeal decision

    7 April 2017

    The Full Federal Court has unanimously dismissed an appeal by former federal MP Clive Palmer's company Mineralogy against a decision that gave his former business partner, CITIC Limited and its subsidiaries, the right to operate and maintain the port at Cape Preston for the Sino Iron Project. As Partner Phil Blaxill and Lawyer Jeremy Rich report, the decision affirms that commercial agreement terms between parties can be impacted by later agreements between those parties and by state agreements, and emphasises the care commercial drafters need to take.

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  • Focus: The latest from the High Court on contractual interpretation

    30 March 2017

    There is an ongoing controversy as to whether, in construing a contract, the 'true rule' in Codelfa mandates that a contract be ambiguous (on its face) before a court may consider evidence of surrounding circumstances. The High Court this week had an opportunity to consider this issue. Although its decision did not expressly resolve the controversy, it may be seen as a (further) departure from the 'ambiguity gateway' approach. Partner, Malcolm Stephens and Senior Associate, Jaime McKenzie report.

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  • Paper: 25 years of class actions

    27 March 2017

    Class action risk is changing. A new wave of entrepreneurialism by plaintiff lawyers and litigation funders has substantially changed class action dynamics in recent times. The 25th anniversary of the class action regime is a good opportunity to reflect on whether, in the light of those and other developments, the regime is still serving its objectives.

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  • Contract Law Update 2016

    15 March 2017

    When is a person bound by their e-signature? When does a breach of contract constitute a repudiation of that contract? When does an exchange of correspondence give rise to a binding contract? What is the latest on penalties? These were some of the contract law issues considered by appellate courts during the past year. In this update, we review the most important contract law decisions by Australian appellate courts in the past 12 months and consider their significance for the development of Australian contract law.

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  • Paper: Class actions in Australia

    14 March 2017

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

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  • Paper: Shareholder class actions in Australia

    14 March 2017

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Focus: Anti-bribery & corruption: Key questions for boards and executives

    6 March 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the first of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Tim Farhall and Lawyer Shamistha Selvaratnam look at the key questions that Australian boards and senior executives should be asking themselves about anti-bribery regulation and compliance practice in 2017.

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  • Unravelled: Improving external dispute resolution schemes - rather odd recommendations

    7 February 2017

    It is difficult to describe the interim recommendations of the Expert Panel reviewing the 'financial system external dispute resolution and complaints framework' as anything other than odd.

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  • Focus: The Rolls-Royce bribery case and its implications in Australia

    30 January 2017

    A Deferred Prosecution Agreement in the United Kingdom, which will see the Rolls-Royce company pay more than £500 million to settle charges of foreign bribery, is the most significant UK DPA to date. It is likely to influence the approach and expectations of the Australian Government and law enforcement agencies, which are considering a suite of measures aimed at facilitating a more effective response to corporate crime, particularly those that encourage self-reporting of foreign bribery. Partners Rachel Nicolson and Peter Haig, Senior Associate James Campbell and Lawyer Malak Johnson report.

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  • Focus: Disclosing privileged documents to regulators

    16 December 2016

    In Cantor v Audi, the Federal Court denied Australian class action plaintiffs access to documents exchanged between Volkswagen AG and a foreign regulator. The case provides insights into what you should consider before providing privileged documents to a regulator. This is critical in an era of increasing regulatory action and class actions in which plaintiffs seek to piggy back off global regulatory investigations and proceedings. Partner Alex Cuthbertson, Senior Associate Monisha Sequeira and Lawyer Alex Lee report on the decision.

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  • Focus: A blow to class action judgments achieving finality

    12 December 2016

    Ordinarily, a party cannot raise in later proceedings issues which it could and should have raised in earlier proceedings. This principle recognises the public interest in resolving disputes with finality. In a recent decision, the High Court considered how that principle applies in the context of group proceedings. The judgment sounds a cautionary note that a successful class action defendant cannot rely on mere failure by members of a class action to opt out of group proceedings to establish that these members are subsequently prevented from raising other claims in relation to the same factual circumstances in new proceedings. Partner Belinda Thompson and Lawyer Alex Lee examine the decision and its implications.

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  • Focus: Predictive coding gets green light from an Australian court

    9 December 2016

    The Victorian Supreme Court recently handed down the first decision of an Australian court to specifically consider and approve the use of predictive coding technology in a large-scale discovery exercise. Partner Nick Rudge, Managing Associate Kate Austin and Applied Legal Technology Manager Lisa Kozaris consider the decision and its implications.

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  • Client Update: Court confirms life easier for default interest clauses post-Paciocco

    6 December 2016

    A recent New South Wales Court of Appeal case considered the application of the penalties doctrine to default interest rate provisions in loan agreements following the High Court's liberal approach to the doctrine in Paciocco v ANZ. Senior Finance Counsel Diccon Loxton, Lawyer Hamish McCormack, and Law Clerk Ryan Abotomey report on Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328.

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  • Report: Wrap-Up of Sydney Arbitration Week 2016

    6 December 2016

    The Allens Arbitration group reports on some highlights from Sydney Arbitration Week, which is an important event on the arbitration calendar. Discussion among local and international participants included some of the biggest challenges facing the future of international arbitration and practical tips for arbitration in the Asia Pacific region.

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  • Focus: Increased whistleblower protections, and more to come...

    24 November 2016

    The Federal Parliament has passed an industrial relations bill that includes significant increases to the whistleblower protections applicable to unions and employer organisations. In what would be a comprehensive overhaul of Australia's whistleblower laws, the Federal Government has separately agreed to support the introduction of equivalent (or better) whistleblower protections in the public and private sectors. Partner Rachel Nicolson, Senior Associate Chris Holland and Lawyer Karina Plain report.

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  • Unravelled: Practical pitfalls and the sacrosanct limitation of liability clause

    7 October 2016

    Commercial trusts could not operate without limitation of liability clauses; however, getting a limitation of liability clause just right is very challenging.

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  • Client Update: An opportunity for greater certainty for class action defendants

    5 October 2016

    Class action settlement negotiations are often hindered by uncertainty about the number and identity of potential claimants. A recent decision of the Supreme Court of NSW has paved the way for defendants to achieve greater certainty in respect of unregistered class members at an earlier stage than had previously been the case. Partner Jenny Campbell, Associate Daniel MacPherson and Lawyer Hugo Dupree report. 

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  • Linklaters Insights: Corporate Criminal Liability report

    4 October 2016

    As pressure from prosecution authorities increases, it is becoming ever more important for international companies to be aware of the potential impact of criminal conduct committed by their executives and employees and the risks and liability the company may face as a result – not least in order to be able to fine-tune and reinforce their compliance programs. Our global alliance partner Linklaters, with input from Allens, has reviewed the risk companies face in 24 jurisdictions across the Asia-Pacific, Europe, Africa and the Americas.

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  • Client Update: E-signature - a case study, but not a test case

    29 September 2016

    A recent New South Wales Court of Appeal decision concerned a guarantee purportedly signed by e-signature without the guarantor's knowledge. It is an interesting case-study, though the decision is really about ostensible authority and ratification. Senior Finance Counsel Diccon Loxton considers its implications.

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  • Unravelled: Financial Services Class Actions

    6 September 2016

    Our class actions team recently published our Class Action Risk 2016 report. The objective of the report is to look behind the headlines and hype that often surrounds class actions to provide a more holistic and objective assessment of class action risk for our clients. This is particularly important in an environment in which the press surrounding class actions has often heralded a developing crisis for Australian business.

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  • Client Update: Privilege during class action investigations - no client required

    2 September 2016

    Our recently released Class Action Risk 2016 report highlights the effect of lawyer and funder entrepreneurialism on the class action landscape. Last week's decision in the ongoing confidentiality dispute between IOOF Holdings Limited and Maurice Blackburn has provided a rare insight into the way class actions are prepared, promoted and funded. The court has also determined that class action lawyers are able to claim privilege over advice given to potential funders or to themselves in connection with the preparation of a class action, before any prospective client has given them instructions. Partner Jenny Campbell and Associate Jerome Entwisle report.

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  • Report: Class action risk 2016

    19 August 2016

    Class actions have featured frequently in the press in recent years, often with a theme of a developing crisis for Australian business. It is, however, important that class action risk be assessed by reference to objective data rather than the headlines. Having gathered and analysed that data, our report identifies some interesting trends that run counter to some of the typical commentary.

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  • Paper: Class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

    Read More
  • Paper: Shareholder class actions in Australia

    18 August 2016

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

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  • Linklaters Insights: Business Crime Quarterly

    3 August 2016

    In the latest edition of Business Crime Quarterly, our global alliance partner Linklaters, with input from Allens, looks at issues including the release of the Australian Government's long-awaited report on the statutory review of the Anti-money Laundering and Counter-terrorism Financial Act; a number of convictions for fraud and corruption, particularly in the UK; the Libor prosecutions that are set to take place in the US; the EU's enhanced package to tackle money laundering and terrorist financing; and financial crime on the increase in Australia.

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  • Focus: Compliance with multi-tiered dispute resolution clauses

    28 July 2016

    The Queensland Supreme Court has stayed proceedings on the basis that the parties did not follow the agreed contractual provisions for the proper escalation of a dispute. Partner Leighton O'Brien, Senior Associate Julian Berenholtz and Law Graduate Flora Ma report on the decision that emphasises the importance of constructing appropriate dispute resolution clauses for each transaction.

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  • Client Update: Penalties: The final word

    27 July 2016

    Today, the High Court handed down its long-awaited decision in Paciocco v Australia and New Zealand Banking Group Limited, bringing an end to six years of litigation. The High Court dismissed the appeal, holding that the late payment fee charged by ANZ on credit card accounts was not a penalty or otherwise unconscionable, unjust or unfair under the relevant statutory prohibitions. The decision provides the final word on the application of the penalties rule (at least for now). Partner Belinda Thompson, Managing Associate Kate Austin and Lawyer Kelly Roberts consider the decision and its implications.

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  • Focus: Shareholder activism: Full Court says no to revolution by resolution

    18 July 2016

    At a time of increasing shareholder activism, a recent decision of the Full Court of the Federal Court has confirmed that activist shareholders have a very limited part to play in the exercise of a board's power in the management of a company. Partners Kim Reid and Julian Donnan and Associate Manu Jaireth report on the decision and what it means for boards of listed companies dealing with activist shareholders.

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  • Focus: Predictive coding endorsed again by English High Court

    29 June 2016

    In its second decision on predictive coding this year, the English High Court has again accepted the use of this innovative technology in discovery, this time in a contested application. Partner Duncan Travis, Managing Associate Kate Austin and Law Graduate Yi-Ling Ng examine the case and its implications.

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  • Allens insights: Back to basics: Managing supply chain risk from an Australian product liability perspective

    29 June 2016

    Allens Partners Phillip Cornwell, Michael Ryan and Ben Farnsworth were part of the global panel analysing the project finance market, including key economies, regional analysis and PPPs. In Getting the Deal Through's second annual issue focusing on the global project finance markets, Phillip, Michael and Ben analysed the evolving legal and regulatory landscape in Australia.

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  • Linklaters Insights: Legal professional privilege

    17 June 2016

    After months of political stalemate in negotiations with its creditors to unlock access to bailout funds, the Greek government has announced a referendum on proposed bailout conditions, an extended bank holiday and the imposition of capital controls.

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  • Allens insights: A safe harbour for now - product liability risk exposure stemming from human rights abuses in supply chains

    2 May 2016

    Globalisation has created significant benefits for consumers by making products cheaper to purchase. It has allowed consumers to access food that is out of season from halfway across the globe, or regularly update the model of their phone. However, the long and complex supply chains that facilitate these outcomes are unpredictable and difficult to control.

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  • Client Update: Court accepts market-based causation

    21 April 2016

    Perhaps the most important unanswered question in Australian class action law has been how causation may be established in a shareholder class action. After more than a decade of uncertainty, the Supreme Court of NSW has ruled that shareholders can prove causation by establishing that the price of the shares they bought was 'inflated' by a company's misleading statements. Partner Jenny Campbell and Senior Associate Mark Hare report.

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  • Focus: Full Federal Court blocks US depositions for Australian class action

    18 April 2016

    The Full Federal Court has ordered an anti-suit injunction against the applicant and a group member in the Treasury Wine Estates shareholder class action, preventing the taking of oral depositions from US-based employees under US court procedures. Partner Duncan Travis and Associate Michela Agnoletti report on a decision that emphasises the importance of the Federal Court's case management of class action litigation.

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  • Focus: Court refuses to approve class action settlement

    12 April 2016

    In a recent Federal Court decision, Justice Murphy refused to approve the settlement agreement between the parties to the Willmott class action, finding that the terms of the settlement were not 'fair and reasonable'. Partner Belinda Thompson and Graduate Lawyer Nathan Van Wees examine what this decision means for future class action settlements.

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  • Focus: Contractors face uphill battle restraining security calls

    7 March 2016

    The Supreme Court of Western Australia has dismissed a subcontractor's application for an interlocutory injunction restraining a call on a bank guarantee. Partners Nick Rudge and Jeremy Quan-Sing and Lawyer Evan Lacey discuss the decision and its implications.

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  • Focus: You've got to be perfected - Equipment leasing and the PPSA

    7 March 2016

    A recent decision of the Supreme Court of New South Wales has again illustrated the potentially severe consequences for lessors of equipment and other goods under the 'vesting' provisions of the Personal Property Securities Act 2009 (Cth). The lease can be a security interest. If the lessors don't perfect the lease by registration, they can lose the equipment. Partner Kim Reid, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report.

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  • Focus: Predictive coding: the future of electronic document production?

    25 February 2016

    A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

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  • Focus: Australia has lifted certain sanctions on Iran

    18 February 2016

    In response to recent confirmation that Iran has met its international nuclear commitments, the Australian Government has lifted all nuclear-related economic and financial sanctions against that country. Partner Rachel Nicolson, Managing Associate Hilary Birks and Associate Sarah Jenkins report on what has changed and the potential opportunities for Australian businesses.

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  • Focus: Strangers no more - Taking action against an insolvent defendant's insurer

    16 February 2016

    The High Court of Australia has decided that a third party claimant can join an insolvent or potentially insolvent defendant's insurer to proceedings to seek a declaration that the insurer is liable to indemnify the defendant. Partner Andrew Maher and Lawyer Shelley Drenth discuss the decision and its implications. 

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  • Contract Law Update 2015

    11 February 2016

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

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