27. July 2011 12:36
The latest service of Australian Stamp Duties Law is now online.
We note in particular the following legislative amendments:
* Duties Act 1997 (NSW) is amended by Duties Amendment (Senior's Principal Place of Residence Duty Exemption) Act 2011
* Duties Act 2000 (Vic) is amended by Statute Law Revision Act 2011
* Stamp Duties Act 1923 (SA) is amended by Stamp Duties (Insurance) Amendment Act 2011
* Duties Act 2001 (Qld) is amended by Revenue and Other Legislation Amendment Act 2011
* Taxation Administration Act 2001 (Qld) is amended by Revenue and Other Legislation Amendment Act 2011
A consolidated index has also been included.
To find out more about Australian Stamp Duties Law, please visit our products page.
25. July 2011 10:09
Former Firepower group chairman Timothy Francis Johnston and former financial adviser Quentin Ward have been banned from managing companies for a combined total of 26 years, following an application by ASIC.
The bannings were handed down by the Honourable Justice Gilmour in the Federal Court in Perth last week.
Mr Johnston has been disqualified from managing a corporation for 20 years while Mr Ward has been disqualified for 6 years.
Mr Johnston and Mr Ward were also ordered to pay ASIC’s costs.
ASIC Chairman Greg Medcraft welcomed the court’s decision and endorsed the statement by Justice Gilmour that Mr Johnston’s conduct ‘is the kind of conduct which diminishes investor and public confidence in commercial markets’.
Mr Medcraft said the case highlighted the importance of investors having all the information they need to reasonably make an informed decision about a company.
‘Where this does not occur as a result of the failings of gatekeepers like directors and advisers then ASIC will not hesitate to act,’ Mr Medcraft said.
‘We will continue to hold gatekeepers accountable – to ensure investors are confident and informed.’
ASIC’s application for the disqualification order, which was heard last month, followed proceedings ASIC brought against various parties associated with Firepower Holdings Group Ltd (Firepower BVI), a company registered in the British Virgin Islands.
The proceedings related to offers for the sale of shares and the distribution of application forms for offers for the sale of shares in Firepower BVI to Australian investors between September 2005 and June 2006 which were in breach of section 727(1) of the Corporations Act. No prospectus or disclosure document was lodged with ASIC and provided to investors.
Mr Johnston was an officer of two companies associated with Firepower BVI, Green Triton Ltd (Green Triton) and Firepower Investments Pty Ltd (Firepower Investments) at the time of the share offers. Mr Ward was a former financial adviser and the sole director of Axis International Pty Ltd (Axis).
On 8 February 2011 the Federal Court declared that both Mr Ward and Axis on a number of occasions contravened section 727(1) of the Corporations Act by distributing application forms for an offer for the sale of shares in Firepower BVI.
The Federal Court also found that each of Green Triton and Firepower Investments contravened s 727(1) of the Corporations Act on a number of occasions in respect of the making of offers for the sale of shares in Firepower BVI.
On the basis of these findings ASIC sought disqualification orders against Mr Ward and Mr Johnston pursuant to s 206E of the Corporations Act.
25. July 2011 08:56
ASIC has obtained orders to wind up two companies related to solar energy group, SunEnergy, following concerns the companies and one of the directors engaged in misleading and deceptive conduct.
The Federal Court in Adelaide appointed Mr Martin Lewis, of Ferrier Hodgson, as liquidator of ACN 124 647 909 Limited (formerly Sun Energy Limited) and SunEnergy Asia Pacific Pty Limited.
The orders follow wind up proceedings initiated by ASIC on 23 June 2011 over concerns that the companies were involved in multiple contraventions of corporations legislation and were not complying with their legal obligations. ASIC also alleged the companies were not being properly managed and that consequently, investors’ funds may be at risk. This action is consistent with ASIC’s focus on ensuring companies and their officers meet required standards and carry out their business in the best interests of the company.
Mr Lewis will be required to identify, collect and secure the assets of the companies for the benefit of creditors.
Individuals who invested through the named companies or who can provide relevant information, are encouraged to contact Mr Lewis on + 61 08 8100 7600.
On 25 March 2011, ASIC obtained declarations and orders in the Federal Court in Adelaide that the companies and one of the directors, John Ernest Price, had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, as part of a fundraising undertaken by the SunEnergy companies and Mr Price between May 2007 and October 2010.
21. July 2011 10:46
ASIC has successfully completed the major initial licensing of consumer credit businesses as part of the transition to the new national consumer credit laws.
By 30 June 2011 ASIC had licensed 6081 businesses.
The vast majority of the licences were approved by ASIC in the period to early April this year. ASIC Commissioner, Peter Boxall, said it was a successful and smooth process, which underlined the advantages that a fully online process brings to a major licensing effort.
Dr Boxall said the licensing process allowed scrutiny of the suitability of applicants. Notable outcomes were:
- ASIC formally refused four licence applications.
- ASIC imposed additional compliance conditions on 11 licences. These conditions required the licensees to appoint an independent compliance expert to review the internal processes to ensure compliance with relevant legislation.
- ASIC required many applicants to submit compliance plans, and amend the plans to ensure that they supported the licensee in meeting their obligations under the National Consumer Credit Protection Act 2009.
ASIC declined around 400 applications as they were incomplete or inadequate; 637 applicants withdrew their applications before finalisation. Many applicants restructured their businesses in response to concerns raised by ASIC, mostly because of concerns regarding persons nominated by the applicant.
Dr Boxall said only licensed people or businesses can carry on consumer credit activities now.
‘If you are getting credit or getting advice or assistance on credit make sure you deal with someone who has a credit licence or their authorised credit representative,’ Dr Boxall said.
‘Consumers who want to check if a company or individual is registered or licensed can search our registers at www.asic.gov.au. Money tips and tools for consumers are available at www.moneysmart.gov.au.’
Since July 2010, ASIC has received almost 2500 complaints in relation to credit matters; 105 investigations have commenced. Of matters finalised, ASIC has:
- taken action to permanently ban three individuals from engaging in credit activities
- cancelled or suspended five credit registrations or licences and issued one infringement notice
- reached negotiated outcomes in which people have voluntarily cancelled their registrations, removed unlawful advertising, or agreed to cease engaging in activities.
The majority of ASIC's investigations to date have involved unregistered or unlicensed companies and individuals. Where appropriate, ASIC has worked to ensure that those persons apply to become registered or licensed. However, Dr Boxall said as the licensing regime matures, ASIC will take a less forgiving approach to unlicensed conduct. This will particularly be the case where people deliberately avoid regulation.
Surveillance and compliance work by ASIC includes:
- National program to identify unregistered and unlicensed credit activity. As part of this campaign, ASIC reviewed 5000 advertisements in print, online, and on radio and TV, to identify traders who were advertising that they provided credit, but who were not registered, authorised or licensed to do so.
- Current focus on responsible lending in the home loan and payday lending markets, consumer leases for white goods and other domestic goods, and debt reduction and consolidation schemes. A surveillance program in the coming year will identify traders, who were initially registered to provide credit services, but have not as yet, been authorised, or licensed. ASIC is concerned that these people may continue trading when they are not permitted to do so.
21. July 2011 09:19
The Board of the Finance Industry Council of Australia (FICA) held talks on Tuesday with the APRA Chairman and Members, and the ASIC Chairman and Commissioners, on regulatory and other issues facing the industry.
The annual liaison meeting discussed a wide range of matters relevant to the Australian finance industry both at a national and international level.
International developments that have the potential to have an impact on the Australian industry were discussed, including the Basel III capital and liquidity standards, the influence of technology on securities markets and US tax law.
Domestic issues around banking reform, superannuation reform, competition in exchange-traded markets, and the recent superannuation and insurance reviews were also covered.
All participants agreed that good continuing dialogue between the industry and its regulators is important to ensuring balanced outcomes for the industry and the broader community.
FICA comprises the Australian Bankers’ Association (ABA), Abacus - Australian Mutuals, Australian Finance Conference (AFC), Australian Financial Markets Association (AFMA), Australian Securitisation Forum, Financial Services Council (FSC) and the Insurance Council of Australia (ICA).
For further comments please call:
APRA: Charlie Hooper (02) 9210 3052
ASIC: media unit 1300 208 215
FICA: Duncan Fairweather (02) 9776 7990
20. July 2011 13:09
Former directors of Opes Prime Stockbroking Ltd (OPSL), Lirim (Laurie) Emini and Anthony Blumberg, pleaded guilty in the Supreme Court of Victoria on Monday to charges brought by ASIC.
Mr Emini, 48, of Templestowe, Victoria pleaded guilty to:
- two charges of dishonestly using his position as a director of Leveraged Capital Pty Ltd with the intention of gaining an advantage for Riqueza Holdings Limited or himself contrary to s 184(2)(a) Corporations Act;
- one charge of recklessly failing to exercise his powers and discharge his duties as a director of OPSL contrary to s 184(1)(a) Corporations Act.
Mr Blumberg, 44, of Moorabbin, Victoria pleaded guilty to:
- one charge of using his position dishonestly with the intention of gaining an advantage for himself or someone else contrary to s 184(2)(a) Corporations Act.
The plea hearing for Mr Emini and Mr Blumberg continues today.
The case against Mr Julian Smith, 48, of Blackheath, New South Wales, who was also a director of OPSL and Leveraged Capital, has been adjourned for trial in the Supreme Court on 11 April 2012.
OPSL collapsed on 27 March 2008 when administrators Ferrier Hodgson were appointed. Ferrier Hodgson were appointed as liquidators on 15 October 2008. In addition to the criminal investigation undertaken by ASIC following the collapse of OPSL on 27 March 2008, ASIC’s investigation into OPSL has also considered how any return available to OPSL creditors might be maximised.
ASIC entered into a formal mediation process with the OPSL liquidators, ANZ Bank and Merrill Lynch to consider a commercial resolution to claims by ASIC and the administrators.
On 6 March 2009, (see 09-37MR), ASIC announced that that it would provide the necessary releases to allow a settlement offer to be put to OPSL creditors. Following a meeting of creditors on 4 August 2009, (see 09-135AD) the Federal Court approved the Schemes of Arrangement. These schemes are expected to deliver a sum of $253 million to creditors. Dividends exceeding 37 cents have been paid by the scheme administrators.
Editor's note: At the conclusion of the hearing, Mr Emini's bail was extended until the date of his sentencing, which is yet to be fixed. Mr Blumberg did not apply for bail and was remanded in custody.
19. July 2011 14:24
Mr Justin O’Brien, a former Director of Business Development of the strategic shareholder consulting services company, Georgeson, has today pleaded guilty in the Downing Centre Local Court to four charges of insider trading.
The charges, brought by ASIC, relate to the purchase of shares by Mr O’Brien in four separate ASX-listed companies (North Queensland Metals Limited, Westfield Group, Crane Group Limited and RP Data Limited) between 30 June 2010 and 11 January 2011. ASIC alleges that at the time Mr O’Brien acquired the shares, he possessed inside information he obtained in the course of his employment concerning major corporate transactions relating to each of the companies that were subsequently announced to the market.
The matter has been committed for sentencing in the Supreme Court and listed for arraignment on 5 August 2011. Bail was granted on a number of conditions, including that Mr O’Brien surrender all passports to ASIC.
The charges arise out of an investigation commenced by ASIC in February 2011. The alleged trading was identified by ASIC’s Market Surveillance team in mid-January 2011.
The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.
19. July 2011 12:01
The latest update to the ASX Listing Rules is now online. The rules have been reviewed for currency and completeness as at July 2011.
We note in particular the amendments to Rule 1.1 – Requirements for ASX Listing, Rule 12.8 - Remuneration Committee and Rule 19.12 – Definitions.
Subscribers click through here.
To find out more about ASX Listing Rules, please visit our campaign page.
19. July 2011 11:50
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 July 2011.
We note in particular two new chapters:
* Chapter 6 - Takeovers; and
* Chapter 6A - Compulsory Acquisitions and Buy-outs.
Subscribers click through here.
To find out more about Austin and Black, please visit our campaign page.
19. July 2011 11:26
The Takeovers Panel has published the reasons for its decision on an application dated 10 June 2011 from Mariner Corporation Limited in relation to the affairs of Viento Group Limited.
Details of the Panel's decision can be found here.
The Panel's reasons for its decisions are on the Panel's website at www.takeovers.gov.au.
The sitting Panel was Byron Koster (sitting President), Francesca Lee and Tony Osmond.