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Austrade launches 2010 Financial Services Benchmark Report

by Hilary Kincaid 30. September 2010 12:15

Austrade has released its 2010 Financial Services Benchmark Report (copy available on their official site).

Australia’s financial services sector produces more than ten per cent of Australia’s annual GDP, and contributes almost four times more to national output than agriculture and fishing. It is also larger than mining, and has an estimated workforce of 400,000.

Australia is number 13 in the list of the world's largest economies, with a 1.93% share of the world nominal GDP - only just behind India with 2.21%.

The report makes interesting reading, and clearly sets out year on year developments and growth worldwide.




Civil Dispute Resolution bill reintroduced

by Hilary Kincaid 30. September 2010 11:49

The Bill, which essentially requires parties to take "genuine steps to seek to resolve their dispute where possible, before commencing proceedings in the Federal Court or Federal Magistrates Court", was reintroduced into the House of Representatives this morning.

The Attorney-General, Robert McClelland, gave the second reading speech. The bill is presented as a logical next step, following the case management powers introduced by the last Parliament.

Whether the Bill succeed in moving us "from the adversarial culture of litigation to one where resolution is actively sought", as the reading speech rather nobly hopes, remains to be seen. However, we note the recent passage of the Civil Procedure Bill 2010 in Victoria, which contains similar measures.


Law reform | Litigation | Parliament

$100 trillion and rising

by Hilary Kincaid 30. September 2010 10:51

The Australian Financial Markets Association has released the 2010 Australian Financial Markets Report (in conjunction with Austrade and the ASX). The report shows that Australia’s annual turnover of over-the-counter and exchanged-traded markets has exceeded A$100 trillion.

The figures measure Australia’s debt, equities, foreign exchange and derivatives markets.

Highlights include:

  • trading in Renewable Energy Certificates jumped to a new level rising by 154% in 2009/2010, as intermediaries grew in importance and market depth improved markedly;
  • turnover in government debt securities increased by 17/1% (largely due to more bonds being issued by the Commonwealth government); but
  • turnover in short-dated debt instruments, predominantly banks bills and CDs, fell by 25.8%, as banks positioned themselves for implementation of the Basel Committee’s liquidity reforms.


AFMA is the industry association for Australia's wholesale banking and financial markets.




Careful with your catch-all pleadings

by Hilary Kincaid 29. September 2010 15:04

The High Court handed down its decision in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31 earlier today.

The judgment of French CJ and Kiefel J contains a particularly elegant little warning against the lazy litigator's traditional fallback of pleading breach of the TPA (at [5]):

The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts at all levels. Its frequent invocation, in cases to which it is applicable, reflects its simplicity relative to the torts of negligence, deceit and passing off. Its pleading, however, requires consideration of the words of the relevant statute and their judicial exposition since the cause of action first entered Australian law in 1974. It requires a clear identification of the conduct said to be misleading or deceptive. Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive.

For authoritative commentary regarding statutory liability for misleading and deceptive conduct in a corporations context, subscribers are referred to [22.450] of Ford's Principles of Corporations Law.

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Insolvency | Litigation | Ford's Principles of Corporations Law

Federal Court issues new practice note

by Hilary Kincaid 29. September 2010 10:31

The Federal Court has issued a new practice note, CORP 3 - Schemes of Arrangement.

The practice note, which is concise, states that when making an order under s 411(1) of the Corporations Act the court requires that the explanatory statement prominently displays a notice. The notice is to the effect that an order for convening a meeting does not indicate that the court has formed any view as to the merits of the scheme, and approval of the explanatory statement does not indicate that the court has prepared or is responsible for that statement's content.

For detailed practical guidance regarding schemes of arrangement in a takeovers context, subscribers are referred to Chapter 16 of Takeovers and Reconstructions.



Compliance | Litigation | Takeovers and Reconstructions

Corporations Amendment (Sons of Gwalia) Bill to be reintroduced

by Hilary Kincaid 29. September 2010 10:04

The government has announced that it intends to reintroduce the Corporations Amendment (Sons of Gwalia) Bill in the Spring sitting of Parliament.

Edited to add: this Bill was introduced into the House of Representatives on 29 September 2010. Click here to read the second reading speech.

The Bill will amend the Corporations Act to: 

  • reverse the effects of the High Court decision in Sons of Gwalia that compensation claims for corporate misconduct made by shareholders against companies are not subordinated below the claims of creditors;
  • address the ability of subordinated shareholder claimants to vote and receive reports to creditors, irrespective of whether they have a financial interest in the insolvency administration; and
  • remove a restriction on some shareholders bringing compensation claims against companies.

For a detailed analysis of the proposed reform, subscribers can click through to [24.510] of Ford's Principles of Corporations Law.


Ford's Principles of Corporations Law | Insolvency | Law reform | Parliament

Service 2 of Austin and Black's Annotations to the Corporations Act

by Hilary Kincaid 27. September 2010 15:14

The latest service of Austin and Black's Annotations to the Corporations Act is now online. The annotations have been reviewed and updated by the authors for currency and completeness as at September 2010.

We note in particular the new annotations to Pt 2D.2 and Ch 8 of the Corporations Act. Subscribers click through here.

To find out more about Austin and Black, please visit our campaign page.


Austin and Black's Annotations to the Corporations Act

Australian Consumer Law website launched and draft regulations released

by Hilary Kincaid 27. September 2010 10:41

The new site, www.consumerlaw.gov.au, was launched on Friday 24 September by the Hon David Bradbury MP, Parliamentary Secretary to the Treasurer.

From 1 January 2011, there will be a single national consumer law. This reform is a co-operative effort between the Commonwealth and the states and territories, through the Ministerial Council on Consumer Affairs.

The site gives information about:

• how the Australian Consumer Law (ACL) is being implemented;

• how the ACL will be enforced by Australia’s consumer law regulators;

• consultation on draft ACL regulations and draft guides on the ACL; and

• consumer policy in Australia and internationally.

The Treasury has released a draft of the Competition and Consumer (Australian Consumer Law) Amendment Regulations 2010 for consultation. Comments are due by 13 October 2010.


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Australian Consumer Credit Law

Personal Property Securities in Australia - new work released

by Hilary Kincaid 24. September 2010 15:49

LexisNexis is proud to announce the release of a new commentary and legislation work, Personal Property Securities in Australia.

Personal property is, broadly speaking, property other than land, buildings and their related fixtures.

The new personal property securities regime brings together over 70 Commonwealth, state and territory laws into a cohesive national system. It will replace over 40 disparate registers with a single national Register. 

The new regime will affect financing, supply of goods on a retention of title basis, leasing, company charges, purchase and sale of personal property, bankruptcy and corporate insolvency. The foundation of the new regime is the Personal Property Securities Act 2009.    

Understanding these changes now is crucial for commercial and general law practitioners in advising their clients on compliance, transition and enforcement. 

Although the Register will not be in operation until May 2011, the new regime makes dramatic changes to the language, procedures and requirements of creating and enforcing interests in personal property. The changes are nothing short of seismic.

For more information, and to download sample chapters, please visit www.lexisnexis.com.au/ppsa. Subscribers -click here.


Law reform | Personal Property Securities in Australia

ASIC begins consumer credit surveillance

by Hilary Kincaid 24. September 2010 15:17

ASIC has begun its first nationwide surveillance activity to detect people and businesses engaging in credit activities without registration. Engaging in credit activities without registration has been an offence since 1 July 2010.

ASIC will be in the field from now until the end of the year.  Although the legislation allows for ASIC to prosecute or seek a civil remedy from the courts for non-compliance, the primary focus of the surveillance activity is to promote and drive compliance with the new consumer credit regime.

The maximum criminal penalties for operating without registration or a licence are $22,000 for individuals and $110,000 for corporations, or two years imprisonment, or both; or civil penalties of up to $220,000 for individuals and $1.1 million for corporations, partnerships or multiple trustees.

More information is available on the official ASIC site.

For up-to-date commentary regarding the sweeping changes to the consumer credit regime, subscribers are referred to Australian Consumer Credit Law.


ASIC | Australian Consumer Credit Law | Compliance


LexisNexis, and the authors and endorsers of this blog each exclude liability for loss suffered by any person resulting in any way from the use of, or reliance on, the content of the blog. Views expressed in blog content are the opinion of the individual writer and do not represent the views of LexisNexis.

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