Recent developments in financial services law
by the Hon Justice Ashley Black
This outline reviews several developments in financial services law. I will first address the recent discussion as to public and private markets and case law concerning bitcoin, the regulation of cryptocurrency products and insolvency claims relating to cryptocurrency. I then turn to other case law as to the scope of financial products; the present position as to relief for foreign financial service providers and new regulatory guidance as to conflicts of interest; and recent case law as to conduct of business requirements, conflicted remuneration in financial services and the design and distribution obligations. I also address recent case law in respect of the whistleblower provisions and voluntary disclosures to the Australian Securities & Investments Commission (‘ASIC’). I conclude by noting several recent statutory developments and the absence of further steps to implement the Australian Law Reform Commission’s recommendations for reform of the regulatory regime in respect of financial services.
The constructive trust over copyright: a raw deal for activists?:
The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd [2025] FCAFC 104
by Taylor McCoy and Jude Davenport
The constructive trust is equity’s answer to the unconscionable assertion of beneficial ownership over property by imposing a trust relationship regardless of any express, inferred or presumed intention to enter into such a transaction. As observed by Deane J in an oft-cited passage in Muschinksi v Dodds, the constructive trust is an in personam remedy ‘attaching to property’ that may be ‘moulded and adjusted to give effect to the application and interplay of equitable principles’. However, in the decades that have elapsed since his Honour’s observations, the High Court has repeatedly cautioned that the constructive trust is a remedy of last resort, raising doubt as to its role as ‘equity’s chameleon’.
However, the Full Court of the Federal Court of Australia (comprising Jackman, Burley and Horan JJ) appears to have thrown caution to the wind in The Game Meats Company of Australia Pty Ltd v Farm Transparency International Ltd (‘Game Meats’), finding that copyright in covert footage captured by animal rights activists at an abattoir was held on constructive trust for the owner of the abattoir, and granting ancillary injunctive relief, including the mandatory assignment of that copyright and for the activists to delete all copies of the footage. In so doing, the Full Court has ‘put meat on the bones’ of the hypothetical posed in obiter dicta over two decades ago by two members of the High Court in Australian Broadcasting Commission v Lenah Game Meats, namely that a constructive trust could be imposed in respect of film or images in circumstances where such content is captured by an invasion of a plaintiff’s legal or equitable rights such that it would be unconscionable for the maker to assert ownership of the copyright against a plaintiff. Accordingly, the Full Federal Court has exhibited a willingness to deploy judicial discretion to impose a constructive trust in novel circumstances.
The measurement and assessment of damages for contraventions of the ACL that induce contract (or contractual) variations:
Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd [2025] NSWCA 145
by Grace Wade
The NSW Court of Appeal has clarified the measure of damages available for contracts (or contractual variations) induced by contraventions of the Australian Consumer Law: Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd [2025] NSWCA 145 (‘Larsen Super Fund v Tastec’). Although the tortious measure of damages will usually be the appropriate measure for a contravention of the Australian Consumer Law (and, in particular, the prohibition on misleading and deceptive conduct, which bears significant similarities with the tort of deceit or negligent misstatement), the decision in Larsen Super Fund v Tastec reaffirms that the Court is not bound to apply the tortious measure of damages (or other general law principles) where doing so does not accord with the circumstances of the case or with the remedial purpose of the statute. The Court’s decision provides clarity as to the assessment of damages for contraventions of the Australian Consumer Law that result in the loss of a contractual right, and the assessment of damages for contraventions that do not result in any actual economic loss per se. The respondent sought, and was refused, special leave, meaning the NSWCA the decision remains binding authority — at least in New South Wales.
Seasonal uncertainty: the Court reins in creative construction:
Coulson Aviation (Australia) v Techfuel [2025] NSWCA 211
by Hamish Sutton
In Coulson Aviation (Australia) v Techfuel the New South Wales Court of Appeal addressed two interrelated issues concerning contractual interdependence and the construction of an undefined temporal expression.
The appeal required the Court to determine whether two contracts for the supply of aviation fuel and support services — each containing references to related third-party agreements—were to be treated as automatically terminating upon the cessation of those external arrangements.
Failure of contractual performance: remedial issues in light of recent appellate authority
by Jeffrey Goldberger
• Restitution for unjust enrichment
• Causation, mitigation and consequential loss
• Expectation and reliance loss
• Damages for distress and disappointment