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Litigation and Dispute Resolution
Complex commercial litigation / class actions
Commonwealth Bank and Storm Financial: Mark is part of the team that has acted for the Commonwealth Bank of Australia (CBA) defending a number of investor actions that have been commenced against the Bank following the collapse of Storm Financial. Our work with the CBA on this matter has included developing and implementing a private dispute resolution scheme, managing the regulatory investigation, settling the Bank's related insurance claims and defending the litigation against the Bank. The litigation is a complex web of multiple claims, including proceedings commenced by ASIC, a separate class action commenced by a private law firm, as well as a number of individual claims across multiple jurisdictions.
Lehman Brothers Australia Limited (in liquidation): Mark and Karen O'Flynn act for the Liquidators of Lehman Brothers Australia in a range of matters arising from the collapse of Lehman, including the development of a unique scheme of arrangement to facilitate the settlement of Lehman's claim on both its local and global liability insurance program and the development of a claims resolution process (CRP) to resolve investor claims. The CRP was also adopted for the purposes of a section 33V class action settlement, in respect of which the Liquidators were represented by another law firm.
Certain directors and officers of Macarthur Minerals Limited ats LPD Holdings Pty Ltd – acting for directors/officers in company related litigation: This matter involves oppression proceedings and a novel damages claim against directors and officers of a resources company. Mark is defending Board members and company officers (including the COO and Company Secretary/General Counsel) of a listed resources company from a shareholder oppression claim brought against them and the company making wide-ranging allegations including breaches of directors' duties, insider trading and the giving of unauthorised financial benefits to related parties.
The initial proceeding was dismissed with indemnity costs awarded in favour of the directors and officers, and an appeal from that decision was successfully resisted. We are now working with the directors to defend a new proceeding which seeks much narrower relief against the directors than was sought in the initial proceeding. The directors applied successfully to strike out the new proceeding and have also succeeded in having the new proceeding stayed pending the payment of their costs of both the initial proceeding and the appeal.
Major Financial Institution (identity confidential) / Defence of GFC claims: Mark acted for a major financial institution in relation to the defence of claims by investors in connection with losses allegedly suffered as part of the fall out of the GFC. The claims involved the alleged loss of tens of millions of dollars and recovery of indemnity for the claims under the client's civil liability professional indemnity insurance. The claims were settled through a novel facilitation process without litigation and the client was fully indemnified by its insurer.
See Litigation and Dispute Resolution
Insurance and Risk
Design and professional indemnity litigation
Mark has acted for over 25 years in professional indemnity claims under a wide range of professional indemnity and civil liability insurance policies, including complex claims under first party and third party PI policies for construction and engineering professionals.
Alliance insurance claims / Gibson Island and Luggage Point Waste Water Treatment Plants: Mark advised these Alliances in relation to claims under Alliance Professional Indemnity and Contract Works Policies to recover rectification costs and other losses incurred by the Alliances in rectifying design defects which resulted in the Plants failing to meet performance specifications. These claims were novel as they were amongst the first claims of their type to be pursued under a first party Alliance PI policy.
Corporate D&O litigation and advisory services
Mark has advised a number of publicly listed companies and their Boards in relation to director’s insurance and indemnity issues, including QIC Limited,Queensland Motorways Limited, Queensland Rail, Babcock and Brown,Billabong International Limited, GPT Group and RACQ and many of Queensland's Hospital and Health Services.
D&O litigation: Mark regularly acts for directors/officers in corporate litigation. In addition to defence of litigation, Mark provides advice regarding:
- indemnity claims under company deeds of indemnity;
- claims under D&O insurance policies;
- voting protocols between directors and the company and communications protocols between directors/officers and the company for the purposes of managing conflicts of interest.
D&O and M&A transactions
Mark advises on directors’ insurance and indemnity issues arising from private equity and M&A transactions, including advice in relation to:
- the private equity transactions involving the Colorado Group Limited and Mincom Limited;
- the merger between Smorgon Group Limited and OneSteel Limited; and
- the acquisitions of Sunshine Gas Limited by Queensland Gas Limited and then its subsequent acquisition by BG Group Plc.
See Insurance and Risk
Class Actions
Commonwealth Bank and Storm Financial: Mark is part of the team that has acted for the Commonwealth Bank of Australia (CBA) defending a number of investor actions that have been commenced against the Bank following the collapse of Storm Financial. Our work with the CBA on this matter has included developing and implementing a private dispute resolution scheme, managing the regulatory investigation, settling the Bank's related insurance claims and defending the litigation against the Bank. The litigation is a complex web of multiple claims, including proceedings commenced by ASIC, a separate class action commenced by a private law firm, as well as a number of individual claims across multiple jurisdictions.
Lehman Brothers Australia Limited (in liquidation): Mark and Karen O'Flynn act for the Liquidators of Lehman Brothers Australia in a range of matters arising from the collapse of Lehman, including the development of a unique scheme of arrangement to facilitate the settlement of Lehman's claim on both its local and global liability insurance program and the development of a claims resolution process (CRP) to resolve investor claims. The CRP was also adopted for the purposes of a section 33V class action settlement, in respect of which the Liquidators were represented by another law firm.
See Class Actions
Government Services
2018 Commonwealth Games Village: Mark is part of the team advising Economic Development Queensland/the Queensland State Government (EDQ) on the development of the Village for the 2018 Commonwealth Games, being held on the Gold Coast. The Commonwealth Games Village will be based on a 29 hectare site in Parklands, Gold Coast. The initial phase of the project involves the construction of 1300 apartments to house about 6500 athletes and officials. EDQ is constructing trunk roads and infrastructure to enable the development of the Commonwealth Games Village and legacy development. Longer term, this area will form the key residential, commercial and retail part of the Gold Coast Health and Knowledge Precinct. Following the full tender process, Grocon has been selected to deliver the project. Mark has advised on contract works property and liability risk allocation and related insurance obligations under the Development Agreement and related project documents.
Queensland Rail Limited restructure: Mark was part of a team advising the Department of Transport and Main Roads on the restructure of Queensland Rail Limited, a company Government Owned Corporation and a public company limited by shares under the Corporations Act 2001 (Cth). Clayton Utz was involved from the outset in advising in relation to the corporate structuring options for both the new statutory authority and the continuation of Queensland Rail Limited. We had particular input into the draft Drafting Instructions for the Queensland Rail Transit Authority Act 2013 (QRTA Act) and advised in relation to a range of complex legal issues in connection with the restructure including insurance issues, taxation issues and regulatory issues. The corporate model for the rail business as reflected in the QRTA Act is novel.
Queensland Hospital and Health Services (HHS): Mark and Government Services Partner, Barry Dunphy, provided advice to the Boards and senior executives of a number of these Queensland statutory authorities regarding directors' and officers' duties and liabilities, regulatory liability and State government indemnity and insurance fund arrangements. This included drafting deeds of company indemnity, insurance and access, submissions for approval as a type 1 financial arrangement under the Statutory Bodies Financial Arrangements Act 1982 and review of directors and officers insurance cover with special endorsements to meet liabilities of the Board and officers of these statutory authorities.
Queensland Department of Transport and Main Roads (TMR) – Gold Coast Light Rail – Stage One: We advised TMR on the most efficient and effective means of securing possession for Stage 1 of the Gold Coast Light Rail Project. Specifically, this involved development of a strategy for obtaining early possession and access by use of the warrant of possession procedure which is provided under the Acquisition of Land Act 1967. In cases where there are disputes with land owners/tenants regarding possession, this procedure can be used effectively to obtain possession without the need to take declaratory proceedings in court. We prepared a suite of precedent letters from TMR to owners/tenants which put in place all of the necessary pre-conditions to obtaining voluntary early possession or, if that was not possible, ensuring that TMR could effectively use the warrant of possession procedure. We also liaised with the Sherriff of the Supreme Court, who has the power to enforce warrants of possession, to ensure that there was no delay if enforcement procedure were necessary.
Queensland Floods Commission of Inquiry: Mark worked as part of a team that advised the Ipswich City Council in preparing submissions and appearing before the Commission of Inquiry and the Parliamentary Inquiry into the Queensland flood event.
Gold Coast City Council / Captive insurer: providing advice to a local government Council in relation to the legal and regulatory issues associated with the establishment of an offshore captive insurance facility, including advice in relation to the statutory functions and powers available to the Council, advice in relation to the constitution of the captive insurance company and the captive management agreement.
Department of Defence / F-111 Deseal/Reseal Class Actions: This matter involved the defence of two class actions commenced under the class action provisions of the Queensland Uniform Civil Procedure Rules. Our client successfully challenged the constitution of the actions as class actions on a number of grounds, including non-compliance with PIPA, and both actions were discontinued.
ACT Insurance Authority / Canberra bushfires: Mark advised the captive insurer of the ACT Government in respect of insurance and reinsurance claims associated with property losses following the Canberra bushfires. This involved the review of complex industrial special risks and business interruption insurance and reinsurance covering property worth $750 million.
Queensland Water Commission, Department of Natural Resources and Water, Port of Townsville, Department of Transport, Department of Transport and Main Roads and Seqwater: Mark has advised these government bodies on legal liability and risk management issues and particularly the liability of public authority reforms introduced by the Civil Liability Act 2003.
Airport Link and Northern Busway and Tugun Bypass: Mark advised the State of Queensland on insurance and liability risk transfer issues associated with the joint procurement of the Airport Link and Northern Busway Infrastructure Projects and the Tugun Bypass Project.
See Government Services
Investigations and Crisis Management
Queensland Floods Commission of Inquiry: Mark worked as part of a team that advised the Ipswich City Council in preparing submissions and appearing before the Commission of Inquiry and the Parliamentary Inquiry into the Queensland flood event.
ACT Insurance Authority / Canberra bushfires: Mark advised the captive insurer of the ACT Government in respect of insurance and reinsurance claims associated with property losses following the Canberra bushfires. This involved the review of complex industrial special risks and business interruption insurance and reinsurance covering property worth $750 million.
See Investigations and Crisis Management