Tip top result goes stale: ACCC-v- Australian Safeway Stores Pty Ltd(No 2)

Bread, its constituents, its methods of manufacture and its price and availability to consumers can claim to be the leitmotiv of competition law, both ancient and modern. The inelasticity of demand for such a staple food explains laws against monopolies being included in the eighteenth century BC Code of Hammurabi, why corn laws exercised the minds of the Gracchi brothers in second century B.C. Rome, and why ineffective regulation of the price of bread was seen as an important precipitator of revolutions in Europe in the eighteenth and nineteenth centuries. In the common law the early restraint of trade case, Mitchell v Reynolds saw a parish wide five year non-competition clause in a contract for the sale of a bakery upheld as reasonable. In the post-Shennan Anti-Trust Act (1890) United States, attempts by manufacturers of macaroni to change its constituents because of the prevailing high price of durm wheat were held in National Macaroni Manufacturers Association v FCT) to constitute price-fixing, an offence illegal per se under American anti-trust law.

Dissected debt : developing a better legislative response to FCT v Myer Emporium Ltd

After many decades of actual and proposed reform, Australia's rules for the taxation of debt arrangements remain deeply flawed. A notable problem is the absence of appropriate rules for dissected debt arrangements, where a creditor dissects a debt into interest and principal
repayment components and disposes of one or both of these separately, as occurred in the leading case ofFCT v Myer Emporium Ltd. The knee-jerk reaction to Myer by the High Court and the legislature is a model of bad tax policy and bad tax law. The approach adopted overseas, using the United States as the clearest example, is a logical one for Australia to follow.

A shareholder’s contractual right to a dividend and a company’s oppressive conduct in withholding dividend payments: Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd

Traditionally, a shareholder’s expectation of receiving a dividend has been limited by the discretion the board of directors has to recommend the appropriate amount of payment as a dividend. As a general rule, shareholders will only be entitled to a dividend after the dividend is declared (normally, at the general meeting), or when the actual date arrives for the dividend to be paid. Because courts were traditionally reluctant to interfere with the internal management of companies, the remedies available to shareholders to compel a company to declare a dividend were very limited. As a result, if the directors have decided to withhold dividend payment, courts will only make an order requiring dividends to be paid under very exceptional circumstances. In this article, the authors discuss the case of Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd [2013] NSWSC 235, which is exceptional for the court’s recognition of a shareholder’s contractual right to a dividend. The article analyses the court’s approach, which found that withholding dividend payments was oppressive and unfairly prejudicial conduct of the company. It also discusses the significance of shareh9olders entrenching their rights in a company’s constitution, irrespective of the fact that a company has a statutory right to alter its constitution by way of a special resolution.

The High Court considers the meaning of “reasonable endeavours”: Electricity Generation Corp v Woodside Energy Ltd

The High Court in Electricity Generation Corp v Woodside Energy Ltd [2014] HCA 7 considered the contractual obligation to use reasonable endeavours. The court decided by a majority of four to one that various sellers of natural gas had complied with their obligation to use reasonable endeavours to supply gas to an electricity generator, despite not actually supplying the gas when the sellers had capacity to do so. The majority judgment provides some useful observations about the use of reasonable endeavours obligations and underscores the court's objective approach to construing commercial contracts.

Competing in the clouds: a strategic challenge for ITSP Ltd

By 2010, cloud computing had become established as a new model of IT provisioning for service providers. New market players and businesses emerged, threatening the business models of established market players. This teaching case explores the challenges arising through the impact of the new cloud computing technology on an established, multinational IT service provider called ITSP. Should the incumbent vendors adopt cloud computing offerings? And, if so, what form should those offerings take? The teaching case focuses on the strategic dimensions of technological developments, their threats and opportunities. It requires strategic decision making and forecasting under high uncertainty. The critical question is whether cloud computing is a disruptive technology or simply an alternative channel to supply computing resources over the Internet. The case challenges students to assess this new technology and plan ITSP’s responses.