Sam Prendergast

Accredited Mediator

Sam is a Nationally Accredited Mediator.

Profile

Sam has more than 20 years’ experience in commercial litigation. He accepts briefs in a broad range of commercial matters and has extensive expertise in disputes relating to complex commercial transactions, technology, financial services, corporations, commercial property and insolvency. He appears in all Federal and Victorian courts, civil tribunals and commercial arbitrations. 

Sam is a Nationally Accredited Mediator, a member of the Victorian Bar’s Innovation & Technology Committee and the Victorian Bar's representative on the Futures Committee of the Law Council of Australia. 

Sam’s experience at the Bar includes:

Commercial acquisitions and complex transactions

Sam regularly appears for and advises clients in relation to disputes arising from complex commercial transactions, including share sale, acquisition, joint venture and investment agreements. Recent matters of significance include:

• Appearing at trial and subsequent appeals (including special leave application to the High Court) for Glencore and Viterra in defence of claims for alleged breach of warranties, misleading or deceptive conduct and non-disclosures in connection with the sale of an Australian malting business (Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13; Viterra Malt Pty Ltd v Cargill Australia Limited [2023] VSCA 157). Sam was the lead junior counsel responsible for key aspects of his clients’ defence, including with respect to loss and damage, which successfully limited the quantum of damages to less than half of what was claimed. 
• Appearing in a commercial arbitration for the purchaser of a group of companies in the travel and hospitality industries against the vendor seeking $5 million in damages for breach of warranties in the share sale agreement, including matters relating to non-compliance with employment obligations, inaccuracies in accounts, shortfalls in tax payments, failures to disclose leasing arrangements and leakage of money from the businesses prior to completion (Imperium Holdings Pty Ltd v P & M Coppin Pty Ltd & Ors (2021-2022)). 

Technology

Sam regularly appears for and advises clients in matters involving the use of technology, including cyber security, IT development agreements and artificial intelligence. He is also a member of the Victorian Bar’s Innovation & Technology Committee and the Victorian Bar's representative on the Futures Committee of the Law Council of Australia. A selection of matters in which Sam has acted include:

• Appearing for the Australian Criminal Intelligence Commission in its defence of a claim by NEC Australia in the Supreme Court of Victoria for damages relating to the termination of contract for the design and implementation of an integrated biometric system for fingerprint and facial recognition and identification, including a referral by the Court to an IT projects expert for hearings and determinations regarding the quantum of costs and expenses recoverable by NEC Australia. Settled following delivery of the special referee’s report (led by Suresh Senathirajah KC) (NEC Australia Pty Ltd v Commonwealth of Australia VSC S ECI 2019 03263).
• Claims by an IT supplier to recover early termination fees alleged by the customer to constitute a penalty and defending counterclaims for breach of services agreements. Settled at mediation (Blue Apache Pty Ltd v Brightwater Care Group Limited VCC Cl-24-05352).
• Claims against a real estate agent to recover money paid by the client into the account of a fraudster due to a cybersecurity breach. The matter settled at mediation (White v RT Edgar Boroondara (Sales) Pty Ltd VCC Cl-23-03400).

Banking/Financial Services

Sam regularly appears for and advises clients in relation to banking and financial services disputes, including compliance with financial services obligations and the enforcement of guarantees and mortgages. A selection of matters in which Sam has acted include:

• Successful defence of a claim for interest under a commercial loan agreement, which the court found was unenforceable as a penalty (Karvelis v Papavasiliou & Ors [2025] VCC 688).
• Successful application to set aside default judgment for possession of mortgaged properties based on defences relating to unconscionable conduct, unjust terms (pursuant to the Contracts Review Act 1980 (NSW)) and duplicity of a broker (Prime Capital Securities Pty Ltd v El Hawli [2024] VCC 162).
• Defending class action enforcement proceedings on behalf of an investor in the Great Southern managed investment schemes, including a successful application for orders that he be removed from the group proceeding (and therefore not bound by the settlement) under section 33KA of the Supreme Court Act (Murray v Great Southern Managers Aust Ltd (an Application by Garry James Parker) [2018] VSC 416). This was the first instance where a group member had successfully been removed from a group proceeding under that section.
• Successful claim by an assignee of a debt who was permitted to rely upon email communications as effective assignment under the Electronic Transactions (Victoria) Act 2000 notwithstanding section 134 of the Property Law Act 1958 (Credit Corp Services Pty Limited v Hammet).

Corporations/Insolvency

Sam regularly appears in the Corporations Lists of the Supreme and Federals Courts including with respect to oppression claims, shareholder derivative claims, winding up applications, applications to set aside statutory demands, public examinations and company reinstatement. A selection of matters in which Sam has acted include:

• Claims by the founder of a medical technology company for oppressive conduct and related claims against other investors and shareholder representatives in relation to a resolution causing significant dilution to his shareholding. Settled at mediation (ExMachi Pty Ltd v Breakthrough Victoria Pty Ltd FCA VID873/2024).
• Successful opposition by a landlord to an application by administrators to extend the period of time under s 443B of the Corporations Act for which the administrators would not be personally liable for rental during continued occupation of premises (Hardy, in the matter of Greencare Developments Pty Ltd (Administrators Appointed) [2024] FCA 44).
• Claims by a shareholder and former director of a composite timber importing company for oppressive conduct and breaches of directors’ duties relating to his exclusion from the business (Kidd v Kwek & Ors VID 321 of 2021, ongoing), including a successful default judgment application against three of the respondents relating to non-compliance with discovery obligations (Kidd v Kwek (No 2) [2024] FCA 194).
• Applications for injunctive relief and declarations in relation to the validity of meeting notices and special resolutions under sections 249F and 252D of the Corporations Act (Aveo Group Limited v State Street Australia Ltd in its capacity as custodian for the Retail Employees Superannuation Pty Limited as trustee of the Retail Employees Superannuation Trust [2015] FCA 1019).
• Successful application for leave to commence derivative proceeding (Kidd v Kwek [2022] FCA 1298).   

Other Commercial Disputes

Sam also regularly appears for and advises clients in relation to disputes involving: 

• Commercial property, including commercial, retail leases, property sales and development agreements. 
• Product liability.
• Building and construction.
• Franchise agreements.
• Commercial class actions.

Other judgments of interest in matters in which Sam has appeared include:

• Successful application, and subsequent appeal, for orders granting preliminary discovery of documents relating to potential claims arising in respect of development agreements (Hexin Pty Ltd v Fei [2023] VSC 476; Fei v Hexin Pty Ltd [2024] VSCA 158).
• Admissibility of evidence disclosing without prejudice communications pursuant to section 131(2)(g) of the Evidence Act (Cargill Australia Ltd v Viterra Malt Pty Ltd (No 14) [2018] VSC 541);
• Admissibility of expert evidence to be provided by industry experts (Cargill Australia Ltd v Viterra Malt Pty Ltd (No 20) [2019] VSC 44).

Other experience

Before coming to the Bar, was a Senior Associate in the Commercial Litigation team at Norton Rose Fulbright. 

Sam’s work as a solicitor included acting in a broad range of disputes involving general commercial litigation, corporations law, insolvency, financial services, franchising, competition, trade practices, product liability, real estate, class actions, trade sanctions and bribery. He also acted in applications for court approval of corporate schemes of arrangement and numerous regulatory investigations, enforcement proceedings and administrative appeals involving government agencies such as ASIC, ACCC, ACMA, the ATO, the Tertiary Education Quality and Standards Agency (TEQSA) and Energy Safe Victoria.

Sam holds a Bachelor of Laws (with Honours) and a Bachelor of Science (Biomedical) from Monash University.