Deal Talk EP6: The cost of disclosure: what the Dexus case means for dealmakers

In this episode of Deal Talk, partners Kam Jamshidi and Nicole Pedler examine the Dexus vs Australia Pacific Airports Corporation litigation, which has firmly brought into focus how divesting parties manage confidentiality obligations in a sale process.Analysing the key lessons from Justice Hammerschlag's judgment in the NSW Supreme Court, Kam and Nicole work through the key issues arising from the case, including:The scale of disclosure and why the nature of the recipients made the breach so seriousWhy Justice Hammerschlag found the breach to be both material and irremediable, and what the breakdown of trust and confidence between joint venture parties means in practiceThe role of the board in issuing the default notice and the drafting considerations that flow from that; andThe practical lessons for transactors, from coding for exit at the joint venture formation stage, to applying more staged, carefully controlled information disclosure in sale processes