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Dr Andrew Hanak
Barrister
List A Barristers
Owen Dixon Chambers West
205 William Street
Melbourne 3000 DX 90
Australia
T +61 3 9225 8444
F +61 3 9225 8395
Contact
Profile
Aickin Chambers
Dr Andrew Hanak is a member of the Victorian Bar practicing in commercial
law, insurance, professional negligence, corporation law, property law and
related areas. He has been briefed to advise and appear in matters at both
trial and appellate level in Superior Courts and Statutory Tribunals. He also
accepts briefs in commercial arbitration disputes (both domestic and
international).
Level 28
200 Queen Street
Melbourne Vic 3000
T (03) 9225 8864
F (03) 9670 7086
E [email protected]
He holds a PhD from Monash University for his thesis on the law of the
company directors’ duty of care, skill and diligence. He is a nationally
accredited mediator and practises in all Australian jurisdictions.
Education
PhD (Monash) (2006) BA, LLB (Hons) (Monash) (1997).
Awarded a first class undergraduate degree from Monash University,
Melbourne.
Awarded a Doctorate of Philosophy for thesis on the company director’s duty
of care, skill and diligence.
Areas of Practice
Dr Hanak practises in the following main areas.
Commercial Law
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Retained to advise or appear in a significant range of matters including
disputes relating to distribution agreements, investors’ representative
proceedings, trade practices cases, proceedings to remove trustees,
claims relating to breaches of fiduciary duties, franchising disputes,
general contractual disputes, joint venture and partnership disputes and
many other commercial matters.
Professional Negligence and Insurance
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Retained in various professional negligence claims against solicitors,
barristers, accountants, auditors and architects and other professionals.
Has also been retained in class action claims against professional
advisors.
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Retained by insurer and insured clients to advise on liability, exclusion
clauses and other aspects of the insurance contract. Advised and acted
for re-insurers in respect of issues arising from management of claims
by primary insurer.
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Retained to defend statutory authorities in claims involving breach of
common law and statutory duties.
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Corporations and related areas
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Retained in relation to claims made by shareholders concerning alleged
breaches of ASX Listing Rules and claims involving failed Managed
Investment Schemes.
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Retained in a wide range of proceedings concerning claims for breach of
directors’ duties made against directors and officers, including cases
such as the prosecution of the directors and officers of AWB Ltd and the
civil claims against the directors of Centro Group.
•
Retained in other proceedings involving Corporations matters such as
oppression proceedings and shareholders’ disputes, liquidators’
recovery proceedings such as preference and uncommercial transaction
claims and proceedings to appoint receivers, liquidators or provisional
liquidators.
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Retained to advise insolvency practitioners regarding security interests,
recovery of assets, director’s examinations and other related matters.
Property and Contaminated Land
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Has undertaken considerable work in relation to disputes concerning
contaminated land including petrochemical contamination, contamination
arising from the use of dry-cleaning solvents and landfill contamination.
Also briefed in a wide range of property leasing and related disputes.
Technology
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Briefed in several technology disputes including disputes involving
licensing of technology for national and international companies and
disputes relating to the construction of telecommunication networks.
Professional
Signed Victorian Bar Roll as Counsel (2000).
Barrister and Solicitor of the Supreme Court of Victoria, Supreme Court of Queensland
and the High Court of Australia. Reciprocal rights to appear in all other Australian
jurisdictions.
Member Victorian Bar Council Readers’ Course Committee (2015).
Member Victorian Bar Council Human Rights Committee (2015).
Recognised in “Best Lawyers Australia” (2013, 2014, 2015).
Accredited Mediator under the Australian National Mediator Accreditation System (2008).
Member, List Committee – List A (2009 - current).
Director, List A Barristers Pty Ltd (2009 - current).
Assistant General Editor Australian Property Law Journal (2003 – current).
Consultant CCH Victorian Conveyancing Law & Practice (2003 – 2013).
Member, Law Council of Australia (“LCA”) (2001 - 2011).
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Member, LCA Corporations Committee (2007 – 2008).
Assistant Secretary, Commercial Bar Association, Insolvency Law Section (2002 –
2007).
Member, LCA, Insolvency and Reconstruction Committee (2001 – 2002).
Member, Insolvency Practitioners Association of Australia (1999).
Cases
Has appeared as Counsel or Junior Counsel in cases in the Superior Courts and Statutory
Tribunals including in the following matters.
Commercial Law
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Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC –
breaches of fiduciary duties by accountant and financial advisor – tracing remedies.
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Garry Warren Smith v Claringbold [2014] VSC – freezing orders – claim involving
defalcation by company employee.
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Re Sportsbet Pty Ltd [2014] – dispute involving sale of shares – whether misleading
statements made to minority shareholder. Junior to Mr Philip Crutchfield QC.
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Pacific Brands Ltd v PD Enterprise Pty Ltd [2014] VSC – dispute between manufacturers
and distributor relating to long term supply agreement.
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Dale v Clayton Utz [2013] VSC – partnership dispute – application to restrain senior
counsel from acting. Junior to Mr Alan Archibald QC and Mr Ross Macaw QC.
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APN Funds Management Limited v Chapel Developments Pty Ltd & Ors [2011] VSC – joint
venture dispute for development of luxury apartment complex. Junior to Mr Peter Jopling
QC.
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Telefonaktiebolaget L M Ericsson v Curtain University of Technology [2010] WASC –
dispute over joint venture agreement for development of statistical multiplexing patent.
Junior to Mr Michael Wyles QC.
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Rural Finance Corporation v Rural Bank Ltd [2010] FCA – misleading conduct - dispute
over use of name. Junior to Mr Peter Jopling QC.
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Razga v Asgard Capital Management [2010] FCA – review of decision of Superannuation
Complaints Tribunal – challenge to death benefit determination.
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Livingspring Pty Ltd v Ng [2007] VSC 9 - joint venture dispute - contempt of court –
breaches of undertakings and orders. Junior to Mr Peter Almond QC.
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In the matter of the Estate of the Late George Adams [2007] SCV - trustees’ commission
claim. Junior to Mr Julian Burnside QC.
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Visy Industries Ltd v Aero Marine Logistics Pty Ltd [2006] SCV - breach of employee
duties. Junior to Mr Jim Delany QC.
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AGL Electricity Ltd v Essential Services Commission, 2006 Electricity Price Review. Junior
to Mr Norman O’Bryan QC.
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Interacid Australia Pty Ltd v Incitec Fertilizers Pty Ltd [2004] SCV - force majeure dispute.
Junior to Mr Michael Shand QC.
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Verduci v Macquarie Bank Ltd [2003] VSC 77 commercial list practice. Junior to Mr Peter
Bick QC.
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Kennedy Taylor Pty Ltd v Grocon [2002] VSC 32 electronic trial. Junior to Mr John Digby
QC.
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Patrick v Capital Finance Corporation (Australasia) Pty Ltd [2001] FCA 1073 representative proceeding —investment in scheme for theatre production. Junior to Mr Tim
North QC
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Young and Rubicam Mattingly Pty Ltd v Mobil Oil Australia Pty Ltd and Anor [2001] VSC
165 contract - terms implied from previous written agreement - purported oral variation
waiver of term of compliance. Junior to Mr Peter Bick QC.
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Forklift Engineering Australia Pty Ltd v Powerlift (Nissan) Pty Ltd & Ors [2000] VSC 443
contract - fundamental breach and termination - breaches constituting repudiation - good
faith - whether an implied term. Junior to Mr Tim North QC.
Professional Negligence, Insurance and related matters
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Glenvue Nomminees Pty Ltd v Trumble Szanto [2015] VSC professional negligence –
solicitors – whether duty to consider and advise on deficiencies in valuation of land.
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Kyriackou & Ors v Edwards [2015] VSC professional negligence – solicitors – whether
solicitor acted for parties to joint venture – causation – whether breaches of duty caused
loss arising from ASIC investigation and litigation.
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Hind v Rigby Cooke [2014] VSC – professional negligence – solicitors – whether advice to
borrower of funds for development was negligent.
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Calliden Insurance v Metricon Homes Pty Ltd [2013] VCAT – defective foundations –
whether insurance policy responds. Junior to Mr Chris Caleo QC.
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Metropolitan Waste Management Group v CGU Insurance Ltd [2012] FCA – claim by waste
management body under professional indemnity insurance policy – construction of pollution
exclusion clause. Junior to Mr James Elliot QC.
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Hill v Lederman [2012] VSC – professional negligence – solicitors – claim relating to
provision of advice regarding investment.
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Taylor& Ors v Lederman [2012] professional negligence – solicitors – several proceedings
brought by investors in failed investment scheme.
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Power v Howard [2012] VSC – professional negligence – barristers – provision of taxation
advice.
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Newtronics Pty Ltd (In Liq) v Russell Kennedy [2012] VCS – professional negligence –
solicitors – conduct of litigation – whether claim bound to fail – duty of solicitor to
recommend settlement of claim. Junior to Mr Paul Santamaria QC.
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Smith v Campbell & Ors [2011] VSC – claim by accounting firm for cover under insurance
policy – loss arising from defalcation by employee.
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Associated Retailers Limited v Toys Unlimited Pty Ltd [2011] VSC 297 – liability of barrister
re drafting terms of settlement.
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Residential Aged Services & Anor v Finlaysons [2011] FCA – professional negligence –
solicitors – conduct of litigation.
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AED Oil Ltd v Back & Ors [2011] VSC – professional negligence – solicitors – drafting of
agreement for charter of oil production vessel – duties of loyalty owed to client. Junior to
Mr Peter Jopling QC.
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K & K Plastics Pty Ltd v Guests Accounting [2010] VSC – professional negligence –
accountants – sale of business transaction.
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Kermani v Gaylard & Ors [2011] VSC 46 – professional negligence – solicitor – advice
concerning letter of offer – whether duty to advise about impact of underlying transactions.
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Watson v Ebsworth & Ebsworth [2010] VSCA 335 – professional negligence – solicitors –
solicitor acting for several parties – whether duties of loyalty and good faith were owed –
causation and equitable compensation. Application for special leave refused [2011] HCA
Trans 246. Junior to Mr Cameron Macaulay QC and Mr Peter Jopling QC.
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Candy Bay Pty Ltd v Jeffrey Thomas & Partners [2010] – professional negligence –
accountant – tax advice.
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Catholic Church Insurance Ltd v QBE Insurance Ltd [2010] VSC – reinsurance agreement
– management of primary claims concerning sexual abuse within Catholic church –
whether primary claims fall within terms of reinsurance agreement. Junior to Mr Simon
Marks QC.
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Letch Holdings Pty Ltd v State of Victoria and City of Greater Geelong [2009] VSC – tender
– duties of municipal authority in relation to tender and sale and development of land.
Junior to Mr Cameron Macaulay QC.
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Watson & Ors v Ebsworth & Ebsworth [2008] VSC 510 Solicitor — existence of retainer —
terms of retainer — contractual duties — duty of care — negligence — fiduciary duties —
conflicts of interests — causation — equitable compensation. Junior to Mr Cameron
Macaulay QC.
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Roscon Developments Pty Ltd v Buckerfield Architects Pty Ltd [2007] VCAT, professional
negligence – architect. Junior to Mr Cameron Macaulay QC.
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Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377; [2005]
VSC 19; [2004] VSC 522 - contaminated land – duty of municipal authority when rezoning –
duties of authority when granting planning approval. Junior to Mr Cameron Macaulay QC.
Corporations and related disputes
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Unger v Vision Group Ltd [2014] VSC – whether company engaged in misleading conduct
in relation to executive share plan – whether company breached ASX Listing Rules relating
to continuous disclosure.
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Re Environinvest Ltd [2013] FCA – claim against directors of failed investment scheme –
duties of CFO of company. Junior to Mr Simon Marks QC.
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Traditional Values Management Pty Ltd v Daniels & Ors [2012] VSC – claim brought by
liquidator against directors of company – questions involving duties of directors of managed
investment scheme.
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South Eastern Secured Investments Ltd v Birch Ross and Barlow & Ors [2012] VSC –
claim by liquidator against former directors of finance company. Junior to Mr Simon Marks
QC.
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Richard Kirby v Centro & Ors [2011] FCA – liability of directors, officers and auditors of
Centro Group. Junior to Mr Ted Woodward QC.
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Allomak Ltd v Allan [2010] VSC – breach of directors duties – knowing assistance by third
party – freezing orders against assets of directors and third parties. Junior to Mr Michael
Wyles QC.
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Re Environmental Ltd [2010] FCA – claim against directors of failed managed investment
scheme – duties of CFO of company. Junior to Mr Simon Marks QC.
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Brahman Pastoral Pty Ltd v Visual Signals Ltd [2010] VSC – winding up on grounds of
oppression and on just and equitable ground.
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ASIC v Lindberg [2009] VSC – corporations – breach of director’s duties – civil penalty
proceedings. Junior to Mr Norman O’Bryan QC.
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East 83 Pty Ltd v City Pacific Pty Ltd [2009] VSC – injunction to restrain appointment of
receiver. Junior to Mr John Dixon QC.
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ASIC v Flugge & Ors, sub nom Re AWB Ltd (2008) 22 FLR 240 directors and officers —
duties — application to stay civil proceedings while criminal proceedings reasonably
possible — privilege against self-incrimination. Junior to Mr Norman O’Bryan QC.
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Australian Securities and Investments Commission v Lee [2007] FCA 508 Corporations –
investigation by ASIC – application for orders under s 1323 of the Corporations Act 2001 –
principles to be applied. Junior to Mr Jim Delany QC.
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Taylor v Taylor [2005] SCV directors and shareholders dispute. Junior to Mr Peter Bick QC.
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Photosprint Australia Pty Ltd (Receiver and Manager Appointed) (In Liquidation) [2004]
FCA 1504 Corporations — liquidation — receiver and manager — duty to provide
information to liquidator.
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Simplot Australia Pty Ltd (ACN 070 579 609) v Foodlife Inventory Holdings Pty Ltd
(Receiver appointed) (ACN 078 176 717) [2002] FCA 1085 Corporations — appointment of
provisional liquidator pursuant to s472(2) of the Corporations Act 2001 (Cth).
Property and Contaminated Land
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DAA Administration Pty Ltd v Lifestyles Communities Ltd [2014] VSC - commercial Lease
– construction of relocation clause – whether landlord validly exercised right to relocate
tenant to alternative premises.
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Brickland Nominees Pty Ltd & Anor v Ballarat City Council [2011] VSC – contaminated land
– land previously used for deposit of rubbish – liability of local council. Junior to Mr Jeffrey
Gleeson QC.
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Mathieson and Anor v Rathmines Investments Pty Ltd [2011] VCS – construction of
contract of sale – contaminated land – liability for contamination costs as between vendor
and purchaser.
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Metropolitan Fire and Emergency Services Board v Yarra City Council & Ors [2011] VSC –
contaminated land - liability of consultant to local council.
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Caspa Pty Ltd v Panham Enterprises Pty Ltd [2010] VCAT – breach of lease, re-entry and
relief against forfeiture dispute.
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Borazio v Mapwood Pty Ltd [2010] VSC – dispute over disclosure of leases and licenses
affecting land in vendor’s statement.
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Kong v Freshwater Residential Pty Ltd [2009] VSC – sale of land – misleading conduct.
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Manor House Group Pty Ltd v Owners Corporation Plan No 349506U (Retail Tenancies)
[2009] VCAT 2348 Lease of serviced apartments building on plan of subdivision – whether
there should be a single lease or multiple leases between tenant and lot owners and
owners corporation. Junior to Mr Clyde Croft QC.
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Automated Enterprise Pty Ltd v Horizon Property Developments Pty Ltd [2009] VSC –
contaminated Land – sale of land – former petrol service station site.
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Goodway Services Pty Ltd v Mobil Oil Australia Ltd & Anor [2001] VSC 265 - landlord and
tenant - contaminated land.
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Yosiffidis v HEIM Nominees Pty Ltd [2000] VSCA 250 - landlord and tenant – appeal from
Victorian Civil and Administrative Tribunal. Junior to Mr George Golvan QC.
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Towercom Pty Ltd v Strathfield Group Ltd [2000] VSC 370 - landlord and tenant - Retail
Tenancies Reform Act 1998 — retail tenancy lease. Junior to Mr Clyde Croft QC.
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Snowy River Properties v Weavers [2008] VCAT – retail tenancies – relief against
forfeiture.
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Buckley & Nunn Pty Ltd v Myer Emporium Pty Ltd [2007] SCV adverse possession claim.
Junior to Mr Anthony Nolan QC.
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Peppercross Pty Ltd v State Revenue Office [2007] SCV stamp duty assessment and
valuation of land. Junior to Mr Neil Young QC.
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Nicholson v The Registrar of Titles [2005] VSC 271 Real property - discharge of restrictive
covenant. Junior to Mr Clyde Croft QC.
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TXU Electricity Ltd v Commonwealth Custodial Service Ltd [2003] VSC 88 Landlord and
tenant — rent review clause — expert valuer to determine market rental. Junior to Mr Peter
Bick QC.
Construction and Technology
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Miles West Group Pty Ltd v Transfield (Australia) Pty Ltd [2008] FCA – contract dispute re
tender for provision of maintenance services. Junior to Mr Ken Martin QC.
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Body Corporate St James Apartments v Renaissance Assets Pty Ltd [2006] VCAT
defective works dispute. Junior to Mr Jim Delany QC.
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CVC Ltd v Multiplex Ltd [2006] QSC variations and delay claim. Junior to Mr Dan Carr QC
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Hydro Electric Corporation v Ericsson Australia Ltd [2004] SCV dispute relating to design of
communications network. Junior to Mr Neil Young QC and Mr Jim Delany QC.
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Nezville Pty Ltd v Australian Broadcasting Authority [2001] FCA 29 Broadcasting and radio
communications — planning of radio spectrum. Junior to Mr Peter Bick QC.
Publications
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The Interaction of the Company Director’s Duty of Care and the Director’s Obligations
Relating to Insolvent Trading and Financial Reporting (2007) 25 C&SLJ 180.
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A defence of the company director’s duty of care, skill and diligence (unpublished PhD
thesis, 2006).
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Repudiation of Leases and the Tenant's Proprietary Interest in the Land - Case Note;
Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 APLJ 85.
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Does the Bankruptcy Act provide excessive protection for a debtor’s interest in a
Superannuation Fund (1999) New Directions in Bankruptcy.
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The Wife's Special Equity Survives the High Court (1998) 6 InsolvLJ 202.
May 2015