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Leading NZ lawyer discusses America's Cup Trustee dispute outcomes

by Sunday Herald and Sail-World on 18 Oct 2009
Leading NZ lawyer and yachtsman, Jim Farmer QC, with daughter Georgia at the recent Georgia Racing launch Zoe Hawkins www.wildemedia.co.nz

Sunday Herald's sports editor, Paul Lewis, talks to leading New Zealand lawyer and Queens Counsel, Jim Farmer, regarding a possible Breech of Fiduciary Duty action by Golen Gate Yacht Club, and the likely outcomes from that action, following a commentary piece published in Sail-World, on last week. Farmer confirms the views expressed in that story.

Emirates Team New Zealand's lawyer, Jim Farmer QC, said a successful action for a breach of fiduciary duty would see the court have the power to remove the defender from the job of hosting the defence. But the court also has the power to appoint a new defender.

'What is not clear is who the court might choose as a new trustee [defender],' Farmer said. 'It could be a yacht club in New York, for example, or it could be the Royal New Zealand Yacht Squadron [the trustee the previous time the Cup was decided]; we just can't tell.'

Farmer said there was a possibility that the court would decide to send the Cup back from whence it came - back to Auckland. But while that option existed, there was no mandate in the America's Cup Deed of Gift that stipulated the Cup had to return to its previous venue.

Farmer said, if it did work out that Auckland hosted the defence, it would still be a head-to-head, big boat challenge between Alinghi and Oracle - meaning other challengers like Team NZ would still have to wait to compete in the next Cup regatta, to be arranged by whoever won the two-boat clash.

Asked his opinion why Oracle had mooted the idea of a breach action, Farmer said: 'I am not completely sure, but it could be that they have looked at all the things that Alinghi has done as a part of this dispute and they have figured that it would be better to build up an entire case involving all the disparate elements - rather than taking each one of those elements to court and winning some and losing some.'

Oracle's complaints about Alinghi's actions include the choice of Ras al-Khaimah venue and the way it claims Alinghi can change the rules to suit itself.

'It could be that, when they add all the various disputes up, that they feel it could add up to the race being held in unfair circumstances.'

For the full article see www.nzherald.co.nz for the earlier commentary in Sail-World http://www.sail-world.com/NZ/Gladwells-Line:-New-Americas-Cup-legal-slugfest-signaled-by-GGYC/62297!click_here
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