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Corporations Amendment (No 1) Act 2010 receives assent

by Hilary Kincaid 28. November 2010 18:44

The Corporations Amendment (No 1) Act 2010 has received assent (on 24 November 2010). It has not yet been proclaimed, but if unproclaimed within 6 months it will commence on 25 May 2011 by forced commencement. 

The text of the amending Act is on Comlaw.  Please see our previous post regarding the substance of the changes that it will make to the Australian Securities and Investments Commission Act and the Corporations Act.


ASIC | Law reform | Legislation | Parliament

Corporations Amendment (Sons of Gwalia) Bill passes Parliament

by Hilary Kincaid 28. November 2010 18:30

The Corporations Amendment (Sons of Gwalia) Bill 2010 passed the Senate on 26 November 2010.

The Bill reverses the High Court’s decision in Sons of Gwalia v Margaretic, which found that s 563A of the Corporations Act did not subordinate certain compensation claims by shareholders below the claims of other creditors.

As the Parliamentary Secretary to the Treasurer, David Bradbury, added: "The amendments also streamline the treatment of shareholder claimants in an external administration and eliminate common law restrictions on the capacity of a shareholder to recover damages against a company."

The revised text of the bill is available from its official Parliament House page. It is currently awaiting Royal Assent.



Law reform | Legislation | Parliament

Stormy weather ahead as ASIC announces intention to commence proceedings in Storm Financial collapse

by Hilary Kincaid 28. November 2010 17:59

ASIC has announced that it intends to commence civil penalty proceedings against Emmanuel and Julie Cassimatis as directors of Storm Financial Limited (in liquidation) (recs and mgrs appted) in relation to alleged contraventions of s 180 of the Corporations Act.

ASIC will allege that the Cassimatises breached their duties by allowing Storm to become exposed to legal liability caused by their implementation of a financial services business model (the "Storm Model") which involved providing commoditised financial advice to investors that failed to take into account the personal circumstances of individual investors.

ASIC has also announced its intention to commence proceedings against parties, including the Commonwealth Bank and Macquarie Bank, currently seeking compensation for investors affected by the Storm collapse.

A short period will be allowed before actually filing proceedings in order to allow settlement proceedings with the bank parties to reach an acceptable commercial outcome.

More detail, particularly regarding the action that ASIC intends to take against the banks, is available on the ASIC official site.


ASIC | Litigation

Service 2 of Personal Property Securities in Australia

by Hilary Kincaid 23. November 2010 13:36

Service 2 of Personal Property Securities in Australia is now available. 


The latest service includes:


An updated index with references to both the legislative and commentary material for easy navigation around the publication

Chapters have been reviewed for currency.

The following chapters have been revised and updated:

Chapter 1: Background and Overview of PPSA

Chapter 2: Key Concepts and Principles

Chapter 4.2:  Receivables Financing

Chapter 4.5:  Aircraft Finance

Chapter 4.6: All Assets Security Interests

Chapter 4.7: Agricultural Security Interests

Chapter 4.8:  Securitisation

Chapter 4.9:  Intellectual Property

Chapter 4.10:  Financial Property, Set Off and Flawed Asset Arrangements

Chapter 6:  Transition Issues

Chapter 7:  Implementation and Ongoing Management Issues



Personal Property Securities in Australia

Anti-price signalling bill introduced

by Hilary Kincaid 22. November 2010 17:35

Bruce Billson, the Shadow Minister for Small Business, Competition Policy and Consumer Affairs, introduced a private members’ bill into the House of Representatives this morning: the Competition and Consumer (Price Signalling) Amendment Bill 2010 (click here for official bill homepage with the text of bill and Explanatory Memorandum).


The key amendments proposed by the bill to the Competition and Consumer Act 2010 (the new name for the TPA as of 1 January 2011) are the proposed new s 45A(1): “[a] corporation must not engage in price signalling” and s 45A(2), which defines price signalling as the communication of price-related information to a competitor (s 45A(2)(a)) for the purpose of inducing that competitor to vary a price for supply or acquisition of goods or services (s 45A(2)(b)) where that communication has the effect, or is likely to have the effect, of substantially lessening competition in a given market ((s 45A(2)(c)).


Private communication between related bodies corporate or parties to a joint venture is excluded from the prohibition, as is communication permitted by a s 88 authorisation or s 93 notification: proposed new s 45A(11).


The Australian Bankers’ Association has promptly issued a media release warning that rushing the bill through could have the result “that customers, investors and analysts would end up being uninformed or misinformed.”


Law reform | Parliament

Amendments to ASIC Regulations

by Hilary Kincaid 18. November 2010 16:37

The Australian Securities and Investments Commission Amendment Regulations 2010 (No 4) were registered on 18 November 2010, and commence on 1 January 2011. 

The amending regulations amend the Australian Securities and Investments Commission Regulations 2001 to prescribe informational requirements for invoices that, if complied with, would allow a person to avoid the presumption that they have asserted a right to payment.  The amendments also provide recipients of requests for payment for unsolicited financial services with information that limits the scope for confusion about obligations to pay other people money in response to documents that assert a right to payment.

The amending regulations will insert new regs 2E and 2F.


ASIC | Law reform | Legislation

Service 63 of Australian Consumer Credit Law now online

by Hilary Kincaid 18. November 2010 16:13

The latest service of our consumer credit work, Australian Consumer Credit Law, is now online.

Two new commentary chapters have been inserted following the commencement of the national consumer credit regime:

  • Chapter 3 - Responsible Lending; and
  • Chapter 6A - Dispute Resolution.

Chapter 1 - Scope of the National Credit Laws and Chapter 2 - Licensing have also been updated.

State and territory legislation has also been updated and is current to the date of publication.


Australian Consumer Credit Law

Service 71 of Australian Stamp Duties Law now online

by Hilary Kincaid 18. November 2010 16:05

Service 71 of Australian Stamp Duties Law is now online.

In the service, the following commentary chapters have been reviewed and updated:

• Chapter 16 — Leases and Other Agreements to Use Land

• Chapter 27 — Concessions for Constructive and Resulting Trusts

• Chapter 29 — Unit Trusts

• Chapter 30 — Transfers by Way of Security

• Chapter 33 — Mortgages and Charges

• Chapter 43 — Superannuation

The following rulings have been updated:

South Australia

• General Information Circulars

— [INFO 1] RevenueSA Publication Processes

— [INFO 18] State Budget 2010–11

• Stamp Duties Information Circulars

— [INFO 8] Stamp Duties on Policies of Insurance

— [INFO 10] Transfer of Fishing Licences — Liability for Duty

• Taxation Administration Circulars

— [INFO 15] Interest Rates

Western Australia

• Commissioner’s Practices

— [CP-TAA-18.1] Remission of Penalty Tax—Late Lodgment and Non-lodgment of Returns, Transaction Records, Acquisition Statements, Instruments and Dutiable Statements

Northern Territory

• Commissioner’s Guidelines

— [CG-GEN-001] Revenue Circulars and Commissioner’s Guidelines:Explanation and Status

— [CG-GEN-002] Interest and Penalty Tax

— [CG-SD-014] Stamp Duty Concession for Substituting a Related Purchaser


Australian Stamp Duties Law

Service 35 of Franchising Law and Practice now available

by Hilary Kincaid 18. November 2010 16:01

Service 35 of Franchising Law and Practice is now available.

The guide cards 'Nature and Regulation' and 'Establishing a Franchise' have been updated.


Franchising Law and Practice

ASIC updates guidance on use of administrative powers to enforce financial services legislation

by Hilary Kincaid 18. November 2010 15:26

ASIC has updated Regulatory Guide 98 Licensing: Administrative action against financial services providers. 

RG 98 details how ASIC will use its administrative powers to enforce the financial services legislation, including its new market supervision powers. 

The update does not represent a substantive change in the Commission's overall approach, but includes additional sections relating to market participants (ie Australian Financial Services Licence holders that are also market participants).   

In the case of market participants, ASIC may —in addition to its general powers— request that the Markets Disciplinary Panel issue an infringement notice. Compliance with that notice may involve the payment of a penalty, undertaking remedial measures, accepting sanctions or entering into an enforceable undertaking.

ASIC policy on the role and function of the Panel is set out in Regulatory Guide 216 Markets Disciplinary Panel.

More information is available at the official ASIC site.




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