News
Govt to crack down on predatory lending The Federal Government plans legislation to curb predatory and irresponsible lending. The proposed new laws will apply to every form of financial service in Australia, including banks, credit unions and pay-day lenders (12 April 2009)
http://www.abc.net.au/news/stories/2009/04/12/2541142.htm
Planner, licensee relationship questioned
The Australian Securities and Investments Commission's banning last month of advisers Matthew and Paul Brannelly over "defective" Westpoint advice has again put the legal relationship between planners and licensees under the spotlight (09 April 2009)
ASIC and ASX act to protect retail investors of partly paid securitiesASIC and the ASX have agreed that ASX will implement changes to its market rules relating to partly paid securities and instalment receipts 'Partly Paid Securities'. (06 April 2009)
ASIC and ASX partly paid securities
Cheap bankruptcies booming
The growth in non-business related bankruptcy activity continues to grow. Bankruptcies were up 13.66 per cent over the figures from the March quarter of 2008 and more than 7 per cent up from the December quarter to 7,164. The number of part nine debt agreements signed was up 36.6 per cent on last year and 3.2 per cent on the December quarter to 2,055 agreements entered into nationally. John Beecroft from Debtassist.com.au says bankruptcy is a common option for people losing their jobs (09 April 2009)
Airlines hit by low demand, advised to target cash-bonus recipients Airlines are ranked fourth in the top-ten industries feeling the brunt of the economic collapse, according to an IBISWorld report (09 April 2009)
http://www.qbr.com.au/news/articleid/55531.aspx
Minister Releases RBA/ASIC Report on Central Counterparty Requirements and Welcomes Rapid Action by ASX/ACH on the Review Findings Senator Nick Sherry, Minister for Superannuation and Corporate Law, released the Reserve Bank of Australia (RBA) and Australian Securities and Investments Commission (ASIC) Review of Participation Requirement for Central Counterparties and welcomed the rapid action by the Australian Securities Exchange (ASX) and its subsidiary, the Australian Clearing House (ACH), to endorse the Review's findings. Minister Sherry commissioned the Review on 11 December, 2008 and received the Review report on 13 March, 2009 (07 April 2009)
http://minscl.treasurer.gov.au/displaydocs.aspx?doc=pressreleases/2009/032.htm&pageID=003&min=njs&Year=&DocType=0
Executive pay inquiry begins
The Productivity Commission has released an issues paper as part of its inquiry into Executive Remuneration in Australia. Download the issues paper here.
Articles and Reports
APRA not interested in exec pay levelsThe prudential regulator, APRA, is interested in how remuneration packages are structured, not how big they are (09 April 2009)
http://www.financialstandard.com.au/news/view/25491/ Speech: Executive Remuneration - The Regulatory Debate
The speech given by John Trowbridge to the 2009 Remuneration Forum on Monday 16 March 2009, has been published on the website and is available to download at:
more info (08 April 2009)
Insolvency heats up as economy cools
Author: Zoe Lyon
Source: Lawyers Weekly, 3 April 2009: p24-26
Letter to ADIs: Securitisation and Funds Management The letter to Authorised Deposit-taking Institutions regarding Securitisation and Funds Management has been published
more info (08 April 2009)
Practice
Queensland changes to variation of trustsFrom May 4, the Office of State Revenue will no longer stamp variation of trust instruments that do not constitute an acquisition or surrender of a trust interest, as they are not liable for duty.
The registrar of titles has been advised that these documents may be lodged directly with the Titles Office without a stamping notation. If you have any enquiries in relation to this matter, please call 1300 300 734 or email the OSR at
client.support@osr.treasury.qld.gov.au
Federal Court of Australia Practice News No. 69, April 2009: Admiralty and maritime law nation-wide seminar The Federal Court will hold a seminar on 'Ship Arrests and Insolvency' in Sydney on 21 May 2009, from 5.30-7.30pm EST. The seminar will be broadcast by video-link to all Registries of the Court.
RSVP: 14 May 2009 Note that bookings are essential. Please complete the
application form and return as requested
Legislation
Commonwealth
NSW
Acts assented to
Associations Incorporation Act 2009 No 7 — Assented to 7 April 2009
Cases
Ann Street Mezzanine Pty Ltd (in liq) v Beck [2009] FCA 333 CORPORATIONS – winding up – proof of insolvency – necessary to establish insolvency both when application is filed and at the date of hearing
PRACTICE AND PROCEDURE – cross-claim alleging that a company was solvent – company previously wound up in insolvency – application to strike out cross-claim – issue estoppel – whether prior finding of insolvency creates issue estoppel – parties to proceedings – deemed parties – meaning of privity in interest – whether a shareholder is in privity with his corporation – abuse of process – when an attempt to re-litigate or collaterally attack a finding is an abuse – whether special reasons required
http://www.austlii.edu.au/au/cases/cth/FCA/2009/333.html
Evroy Enterprises Pty Ltd (in Liquidation), Re [2009] QSC 081 CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP – PROOF OF DEBTS – APPEAL AGAINST LIQUIDATOR’S DECISION - Generally – whether a liquidator may declare a constructive trust –where the applicant was seeking a the liquidator approve a proof of debt
ESTOPPEL – EQUITABLE ESTOPPEL – PROMISSORY ESTOPPEL – where the liquidator of the company rejected a proof of debt against the company by the estate of the deceased – where the applicant alleges the debt arises by way of constructive trust in favour of the applicant as executor of the estate of the deceased – Where the company owned and controlled a group of family grazing properties - Where the deceased was the son of the son of the directors of the company and was for a period a director himself – where the deceased worked on the family properties allegedly in reliance of a promise that he would inherent one of the properties
http://www.sclqld.org.au/qjudgment/2009/QSC/081
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2009] QSC 076 PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – USE OF DOCUMENTS – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – where parties are involved in ongoing arbitration proceedings – whether leave should be granted
CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – WHAT CONSTITUTES INSOLVENCY – EVIDENCE OF INSOLVENCY – where applicant seeks leave to use documents obtained in present proceedings for the purpose of winding up proceedings against respondent – whether respondent is insolvent
PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – INHERENT POWER TO AMEND TO GIVE EFFECT TO MEANING AND INTENTION OF COURT – where respondent seeks variation of an order previously issued in present proceedings – whether court has power to vary the order – whether respondent has “liberty to apply” for variation pursuant to terms of previous order – whether previous order should be varied
http://www.sclqld.org.au/qjudgment/2009/QSC/076
Re Australian Style Investments Pty Ltd [2009] VSC 128CORPORATIONS – Managed investment scheme – Unit trusts – Requisition by member to responsible entity to convene meeting of members – Responsible entity seeking declarations that requisitions and resolutions proposed invalid – Whether power to member to requisition a meeting exercised for an improper purpose – Validity of resolution to remove responsible entity – ss 252B, 252C, 252D, 252J, 601FA, 601FB, 601FM, 601FN, 601HA, 601HE 769C, 1041H and 1322 of the Corporations Act 2001.
CORPORATIONS – Winding up – Whether plaintiff a contingent creditor – Whether leave to apply ought to be granted to windup on insolvency ground – Whether plaintiff established prima facie case to wind up on just and equitable ground – ss459P(2) and 462 of Corporations Act 2001.
PRACTICE AND PROCEDURE – Application under r 2.14(3) of the Supreme Court (Corporations) Rules 2003 for leave to make submissions – Whether submissions limited to issues between the parties.
http://www.austlii.edu.au/au/cases/vic/VSC/2009/128.html
ROBB EVANS OF ROBB EVANS & ASSOCIATES v EUROPEAN BANK LTD [2009] NSWCA 67APPEALS – evidence – challenge to witness credibility – advantage of trial judge
DAMAGES – “usual undertaking as to damages” – compensation pursuant to undertaking to court for loss of use of money – whether beneficiary of undertaking can recover amount for loss of use of money beyond interest accrued – opportunity for favourable currency exchange rate fluctuations lost – whether loss foreseeable by party preferring the undertaking from circumstances known at time of undertaking – whether loss too remote to be characterised as properly compensable – Supreme Court Rules 1970 (NSW), Pt 28, r 7(2)
INTERLOCUTORY RELIEF – usual undertaking as to damages – origin – purpose – construction – enforcement – relationship with interlocutory injunctions – relationship with contractual obligations – “special circumstances” in which court declines to enforce undertaking
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/67.html
ING Funds Management Ltd v ANZ Nominees Ltd; ING Funds Management Ltd v Professional Associations Superannuation Ltd [2009] NSWSC 243CORPORATIONS - managed investments - constitution - unilateral action by responsible entity of registered scheme to modify constitution - where constitution is in the form of a deed poll - whether instrument other than deed may modify constitution - analysis of responsible entity's limited power of modification under s 601GC(1)(b) - ascertaining corporation's state of mind - meaning of "member's rights" - distinction between rights and interests - meaning of "adversely affect" - meaning of "reasonably considers" - need for evidence showing grounds for decision and rationale for conclusion
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2009/243.html
Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corporation Pty Ltd [2009] NSWSC 264CORPORATIONS - winding up - recovery proceedings by liquidator - whether application made within period stated in s 588FF(3)(a)(1) - whether application by interlocutory process in winding up proceedings is a nullity - TIME - computation of time - whether 16 January 2009 within period of three years after 16 January 2006
http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2009/264.html
COAD -v- WELLNESS PURSUIT PTY LTD (in liq) [2009] WASCA 68Voluntary administration - Administrator's right of indemnity out of company's assets for remuneration, costs and expenses of the administration - Administrator's statutory and equitable liens to support right of indemnity - Priority as between administrator's equitable lien and secured creditor's prior fixed charge - Statutory scheme of priority applies generally to administrator's equitable lien - Equity may depart from the statutory scheme if, in the particular circumstance, it would be unconscientious for another creditor to assert and rely on the statutory priority against administrator's equitable lien
http://www.austlii.edu.au/au/cases/wa/WASCA/2009/68.html
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