News
Cheaper, faster Federal Courts
The Rudd Government will use the pending restructure of the federal judiciary to promote a "quick, efficient and inexpensive" philosophy across commonwealth courts.
RBA leaves cash interest rate unchanged at 3pct
The Reserve Bank of Australia (RBA) has left the cash interest rate unchanged after its board meeting on Tuesday http://www.rba.gov.au/
Trustee companies now in federal jurisdiction
The Minister for Superannuation and Corporate Law, Senator Nick Sherry, has unveiled the legislation that will push trustee companies into Commonwealth jurisdiction and under ASIC regulation (07 May 2009)
Ministerial release:
Consumer disclosure and protection measures expanded
All retail debentures and promissory notes will be subject to the full range of consumer disclosure and protection measures that currently only apply to debentures, according to the Minister for Superannuation and Corporate Law, Senator Nick Sherry. Sherry has released the Corporations Legislation Amendment Bill relating to debentures and promissory notes, which he said would harmonise the legal regime (08 May 2009) Ministerial release:
APRA consults on enhanced supervision for life companies
Legislation to give APRA the power to authorise non-operating holding companies (NOHCs) of life insurance companies is currently before Parliament. APRA Executive Member John Trowbridge said these changes will better protect life insurance policyholders from risks that may exist in related companies, by ensuring that authorised NOHCs of life companies have adequate governance procedures and that persons in responsible positions are fit and proper (07 May 2009)
FOS moves to connect with planners
ACCC allows AMS Mortgage Services Pty Ltd to waive home loan contract exit fees
AMS Mortgage Services Pty Ltd proposes to waive the deferred administration fee for early termination of Wizard branded home loans where a customer chooses to refinance with Aussie Home Loans. The Australian Competition and Consumer Commission will permit this arrangement which involves third line forcing, after a notification was lodged by AMS (01 May 2009)
Victorian First Home Bonus increased for new homes
An extension of the Victorian Government’s First Home Owner Scheme and an increase in the First Home Bonus for new homes will create thousands of jobs, boost the economy and make buying a first home even more affordable for Victorians (06 May 2009)
Go-kart operator faces fines following track death
A GO-KART operator faces hundreds of thousands of dollars in fines over the death of a woman at a Port Melbourne track. Prosecutors say the company should be fined about $500,000 for each of the three offences it was found guilty. But the company - AAA Auscarts Imports Pty Ltd - has gone into liquidation and any fines may never be paid (06 May 2009)
UK ruling unearths Rene Rivkin's Swiss loot
Millions of dollars that disappeared from Rene Rivkin's Swiss bank accounts after he died could be recovered following a court victory in Britain (06 May 2009)
Billabong Water Solutions closes its doors
Billabong Water Solutions avoids liquidation by entering deed of company agreement to repay creditors (07 May 2009)
Former Australian lawyer jailed for dishonesty
Judge Farish said when Da Costa arrived in New Zealand he forged bank statements and employment letters to apply for a bank card and personal loan. He pleaded guilty in the Christchurch District Court two weeks ago to one charge of forgery and three of obtaining funds by deception (07 May 2009)http://courtnews.co.nz/story.php?id=1912
Debt reprieve for troubled tunnel
The operator of the Lane Cove Tunnel is expected to be given another reprieve this month from the financial guarantor of its $1.14 billion of debt, despite reporting another fall in traffic figures and recently posting a $900 million full-year loss (11 May 2009)
Articles and Reports
Fiduciary obligations and trustees in bankruptcy
Justice Peter W Young
Source: Australian Law Journal, Vol 83, No 4, April 2009: p263-268
Waiver in the High Court: Agricultural and Rural Finance Pty Ltd v Gardiner
Author: Paul Liondass
Source: Australian Business Law Review, Vol 37, No 2, April 2009: p132-136
IOSCO Interim consultation report on unregulated markets and products
The International Organization of Securities Commissions’ (IOSCO) Technical Committee Task Force on Unregulated Markets and Products has published its Consultation Report for public comment (06 May 2009) the IOSCO report.
ASIC hardship report
ASIC, in conjunction with Consumer Affairs Victoria, have released a report examining how lenders and mortgage brokers respond to borrowers experiencing financial difficulties (07 May 2009)
Helping home borrowers in financial hardship (
REP 152)
Practice
Financial services reforms released
An exposure draft of legislation forfinancial services reformhas been released. The Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 deals withmargin loans, trustee companies and debentures. Public exposure of the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 is available until29 May, before it is introduced into Parliament in June.
APRA consults on enhanced supervision for life companies
The Australian Prudential Regulation Authority (APRA) has today released a consultation package on proposals to enhance the prudential framework for life insurance companies (07 May 2009) more info
APRA Insight - Issue 1 2009
APRA Insight - Issue 1 2009 is now available on the APRA website (08 May 2009) more info
Legislation
Queensland
Current Reprints
Duties Act 2001 No.6
State Financial Institutions and Metway Merger Facilitation Act 1996 No.2
Statutory Bodies Financial Arrangements Regulation 2007 No.2
Superannuation (State Public Sector) Act 1990 No.7
ACT
Regulations
First Home Owner Grant Amendment Regulation 2009 (No 1) (SL No 16 of 2009)
NSW
Regulations and other statutory instruments
Supreme Court Rules (Amendment No 416) 2009 (2009-165) — published LW 8 May 2009
Uniform Civil Procedure Rules (Amendment No 26) 2009 (2009-166) — published LW 8 May 2009
Statutory Instruments
Insurance Premiums Order (Retro-Paid Loss Premium Method) 2009-2010 (2009-171) — published Gazette No 69 of 8 May 2009, page 1973
Consultation or Exposure Bills
Open Government Information Bill 2009
Information Commissioner Bill 2009
Open Government Information (Consequential Amendments and Repeals) Bill 2009
Bills introduced etc Government
Civil Procedure Amendment (Transfer of Proceedings) Bill 2009
Criminal Legislation Amendment Bill 2009
Cases
Privacy case notes
The Privacy Commissioner has published new case notes.
D v Finance Company [2009] PrivCmrA 4: Improper listing of a payment default on an individual's consumer credit information file.
E v Advertiser [2009] PrivCmrA 5: Improper listing of a payment default on an individual's consumer credit information file.
Sunstate Orchards Pty Ltd ACN 095 659 733 v Citrus Queensland Pty Ltd ACN 110 855 359 [2009] FCA 452
Tsekouras v Olsen [2009] FCA 429
PRACTICE AND PROCEDURE – application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) – no reasonable prospect of successfully prosecuting any part of proceeding – vexatious proceedings – whether applicant should be prevented from commencing or continuing proceedings without leave of the Court pursuant to O 21 r 1 of the Federal Court Rules
Bankruptcy Act 1966 (Cth) s 153A
DKZN and Companies Auditors and Liquidators Disciplinary Board and Anor [2009] AATA 313
ADMINISTRATIVE LAW – whether decision under review should be stayed to allow the applicant to complete three audits for non profit organisations – application for stay refused
GR Finance Limited v Josephine Waldron [2009] FMCA 398
BANKRUPTCY – Creditor’s petition – misstatement in document attached to bankruptcy notice as to provision under which interest claimed, principal sum, interest rate and amount of interest – reference to mortgage and/or loan contract rather than to provision relating to interest on judgment – whether defect or irregularity curable under s.306 of the Bankruptcy Act – failure to disclose particulars of security in creditor’s petition – whether evidence to verify or support any estimate of value of security – creditor’s petition dismissed.
GR Finance Limited v Francis Waldron [2009] FMCA 418
BANKRUPTCY – Creditor’s petition – misstatement in document attached to bankruptcy notice as to provision under which interest claimed, principal sum, interest rate and amount of interest – reference to mortgage and/or loan contract rather than to provision relating to interest on judgment – whether defect or irregularity curable under s.306 of the Bankruptcy Act – failure to disclose particulars of security in creditor’s petition – whether evidence to verify or support any estimate of value of security – creditor’s petition dismissed.
Drake & Anor v Jones [2009] FMCA 298
BANKRUPTCY – Annulment applications – debtors’ petitions – bankrupt husband and wife seek annulment in order to appeal from Supreme Court decision in favour of their major creditor – whether debtors’ petitions ought not to have been presented or accepted – Official Receiver’s obligation to advise petitioners of consequences of bankruptcy – operation of s.55(3AA) of the Bankruptcy Act – power of the Court to annul a bankruptcy arising out of a debtor’s petition – discretionary considerations.
Dance With Mr D Limited v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332
PRACTICE AND PROCEDURE – stay - where plaintiff sues for breach of a contract which contains a provision for disputes to be determined by an expert – considerations relevant to grant of stay – CONTRACT – construction of expert determination provision – WAIVER – whether defendant waived or abandoned right to invoke alternative dispute resolution provision – EQUITY – estoppel – whether defendant is estopped from relying on alternative dispute resolution provision on the basis that it represented, induced or participated in an assumption that it would not do so – whether plaintiff relied on defendant’s conduct to its detriment in suing - CONTRACT – operation of exclusive jurisdiction clause where plaintiff sues in Australia for breach of a contract containing a provision agreeing to exclusive jurisdiction of English Courts
Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342
CORPORATIONS - membership, rights and remedies - oppression, unfair prejudice and unfair discrimination - shares held by three members in equal proportions - whether members in partnership - whether "quasi partnership" - whether understanding as to participation in day-to-day management - termination by the company of arrangement under which services of one member are made available to the company - whether exclusion in breach of understanding - whether denial of expectation of fair arrangement for withdrawal - where departure of relevant member followed physical altercation between him and another member - irretrievable breakdown superseded original understandings and expectations - just and equitable that company be wound up
Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361
PROCEDURE - affidavits filed and served in proceedings
Affidavits not read in open court - application for leave to furnish affidavits to police for investigation of crime - release from implied undertaking - public interest considerations balancing exercise -special circumstances test - application granted – mortgage default
Menezes v Salmon [2009] NSWSC 2
Equity - Trusts & Trustees - Express trust created inter vivos. Three properties purchased in the name of another with the purchasers executing a mortgage to secure borrowings. Two properties held to be the subject of an express trust notwithstanding the lack of writing required by s23C of the Conveyancing Act 1919 - Third property the subject of a resulting trust in proportion to the contributions
Perpetual Trustees Victoria Limited v Ann-Marie Menzies; Finance Express (Qld) Pty Limited (In liq) v Ann-Marie Menzies [2009] NSWSC 352
Meiko Australia Pacific Pty Limited v Adam Samuel Hinchliffe & Anor [2009] NSWSC 354
EQUITY - General principles - Wrongful appropriation - Following freezing orders first and second defendant's consent to judgment in the sum of $730,000 against them on a joint and several basis - Further relief sought by plaintiff with respect to additional sums - Onus of proof in cases involving fraud - Evidence Act NSW section 128 certificate
DJZ Constructions Pty Ltd v Paul Pritchard trading as Pritchard Law Group [2009] NSWSC 359
PROCEDURE - costs - security for costs - defendant seeking further security for costs - security previously provided by consent - parties agreed that further costs should be ordered - whether further security should have regard to costs incurred since first security provided - further security ordered
LEATHERBARROW & THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL v PACEYARD PTY LTD (IN LIQUIDATION), RICHARD JAMES KING (A BANKRUPT)& JILLIAN MAREE CATON-KING (A BANKRUPT) [2009] CCT PC008-08
Claim on fund set up under the Property Agents and Motor Dealers Act 2000
DONOVAN, THE CHIEF EXECUTIVE, OFFICE OF FAIR TRADING v SCHOLZ MOTOR GROUP PTY LTD (IN LIQUIDATION) T/A GOLD COAST EUROPEAN AUTOMOBILES, SCHOLZ & SEYMOUR [2009] CCT PC048-07
Claim on fund set up under Property Agents and Motor Dealers Act 2000; is a lessee or hirer of a vehicle entitled to claim for financial loss; Property Agents and Motor Dealers Act 2000 sections 470 and 488(3)(a)
Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd & Ors [2009] QSC 098
PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENT AND OTHER MATTERS – OTHER MATTERS – application to vary a consent order based on compromise – application to vary consent order to prevent payment – principles by which the court will exercise the power to vary a consent order made in consequence of an agreement between the parties or as an element of a compromise – whether the facts relied upon by the applicant attract the operation of UCPR 668 – whether the discretion under UCPR 668 should be exercised
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – FREEZING ORDERS – JURISDICTION TO GRANT – where there is some risk that a future judgment may be partly unsatisfied – where compromise effected and consent order made – whether the balance of convenience and interests of justice justify a freezing order – whether a freezing order or similar order should be made
Duhs v Pettett & Ors [2009] QSC 100
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where $2,700,000 was given by the plaintiff to the first defendant to invest – where the plaintiff alleges this arrangement with the first defendant was not a contractual relationship – where the arrangement is alleged to have failed – whether there is a claim for restitution – whether the defendant’s defence has a real, as opposed to fanciful, prospect of success
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS – UCPR r 298 – whether the Court should make other orders or impose conditions on the further conduct of the proceeding
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – cross-application to strike out statement of claim – whether statement of claim properly pleads and particularises material facts
"The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances”
