An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed, and not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from a recent Privy Council judgment.
Failure to comply with a contractual requirement to give notice of a claim under a sale and purchase agreement can cause a buyer's claim to fail, even if the seller is already aware of the matters that give rise to the claim. The High Court recently provided a timely reminder that buyers should consider carefully the terms of the notice requirements and follow these rigorously.
While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process. This decision shows that parties should not assume that they will be immune to a finding of abuse of process purely because they have not done anything unlawful or dishonest. Exploring the context of such actions is key.
In a recent decision, the head of the Commercial Court provided topical guidance on the construction and application of material adverse effect clauses in the context of the COVID-19 pandemic. The judgment highlights the significance of the precise words used and the importance of ensuring, insofar as possible, that they properly reflect the intended allocation of risk between the parties.
According to a recent Privy Council decision, the Duomatic principle can apply to ostensible authority as well as actual authority. The council found that a company's director and registered agent were not in breach of their tortious duties of care to the company where they were acting on the instructions of an agent who had ostensible authority. This case provides insight into circumstances where arrangements cloaking the beneficial owners of, in particular, offshore companies are relatively common.