Octaviar - the saga continues: appeal to the High Court - 16 October 2009
The Public Trustee of Queensland has lodged an application for special leave to appeal to the High Court from the decision of the Queensland Court of Appeal (see our Alerts of 18 September and 21 September 2009).
Octaviar - was it all just a bad dream? - 21 September 2009
The Octaviar decision has been emphatically overturned by the Queensland Court of Appeal. But this does not yet mean that life necessarily returns to the way it was. For a start, there is the possibility of appeal. In any event, the “genie is out of the bottle”: parties who want to attack charges will be looking closely at the registration provisions of the Corporations Act and the drafting and registration of charges and variations, and at least one remark in the appeal judgment may leave some uncertainty. Thus, parties taking security will need to remain alert, though not alarmed.
Octaviar decision overturned on appeal - 18 September 2009
The Queensland Court of Appeal has found for Fortress in the appeal from the decision of McMurdo J in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37, thus overturning the decision at first instance.
Australian carbon trading documentation launched - 10 September 2009
The Australian Financial Markets Association (AFMA) has launched its recommended form of Australian documents for domestic and international carbon trading. These documents (which are based on well-known international standards) are aimed at facilitating the growth of the carbon trading market in Australia. We look at answering ten key questions market participants may ask.
Changes to Australian IWT for debt instruments issued by the Commonwealth, States, Territories and their authorities - 24 August 2009
The Treasurer and Assistant Treasurer have announced that the Federal Government intends to change the Australian interest withholding tax (IWT) treatment for certain bonds, notes and other debentures and debt interests (debt instruments) issued by the Commonwealth, States and Territories and their authorities. The Federal Treasury also released an exposure draft of amending legislation and explanatory material to implement these changes.
Regulator - 2nd edition - 14 August 2009
Chinese regulator issues new rules to regulate derivatives transactions - 10 August 2009
中文版
In a move designed to protect onshore (domestic) Chinese banks and their customers from exposure to derivative products which are perceived as being high risk, the China Banking Regulatory Commission (CBRC) has unveiled stringent new rules to further regulate the issue and use of derivative products.
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
New Australia - NZ double tax agreement signed - 29 June 2009
The Australian and New Zealand governments today announced that the two countries have signed a new tax treaty to replace the existing 1995 treaty and 2005 protocol.
Analysis of the NSW mortgage duty changes - 19 June 2009
The NSW Government has introduced into Parliament the State Revenue Legislation Further Amendment Bill 2009. Among other things, it seeks to make several significant amendments to the mortgage duty provisions in the Duties Act 1997 (NSW), with effect from 1 July 2009. These changes will affect securities put in place prior to 1 July, as well as those executed after this date.
Australian Federal Court excludes forwards from derivative regulation - 18 June 2009
In a recent decision, the Federal Court of Australia has made some unexpected findings that, if taken to their apparently logical conclusion, might be argued to exclude some common derivatives from the Australian financial services regulatory regime. It is an interesting result, particularly in the context of the current global focus of expanding regulatory reach.
Australian financial authorities release report on OTC market - 22 May 2009
Today, the three Australian financial authorities (the Australian Prudential Regulation Authority, the Australian Securities and Investment Commission and the Reserve Bank of Australia) published their joint report on the Australian over-the-counter (OTC) derivatives market. The report summarises the results of the survey which the authorities conducted in respect of the OTC market as well as identifying a number of areas in which practices in the Australian OTC market might be enhanced.
Octaviar - proposed solutions for the past and the future - 1 May 2009
The Qld Supreme Court's decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 (6 March 2009) has generated a great deal of concern (and inconsistent positions) in the banking and finance industry, and among legal and other advisers. In an effort to focus the debate and begin to stabilise market practice in a post-Octaviar environment, Mallesons Stephen Jaques and Allens Arthur Robinson are making available to the market some practical solutions which we have formulated together, working with John Sheahan SC.
New Master Agreement for Financial Derivatives in China - 18 March 2009
中文版
On 16 March 2009 the China Interbank Market Financial Derivatives Master Agreement (2009 version) (NAFMII Master Agreement (2009 version)) as well as a relevant notice (NAFMII Notice (No.5)) by the National Association of Financial Market Institutional Investors (NAFMII) was released. This is the latest step by the Chinese authorities to regulate and further support the development of the financial derivatives market in China.
Court widens category of registrable instruments relating to charges - 10 March 2009
The Queensland Supreme Court handed down its decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 last Friday, 6 March 2009. The decision is widely regarded as surprising because it appears to cut across current market practice.
ASIC extends ban on covered short selling of financial stocks - 5 March 2009
Today the Australian Securities and Investments Commission (ASIC) announced that it has extended its temporary ban on covered short selling of financial stocks until 31 May 2009, although it will keep the ban under review.
ASIC takes further action on placements - 24 February 2009
The Australian Securities and Investments Commission accepted an enforceable undertaking from Droga Capital on 18 February 2009. It follows an investigation by ASIC into Droga Capital’s trading of securities in Flinders Mines Limited.
Ingot Capital case - Implications for investment banks - 30 January 2009
The recent decision in Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2008] NSWCA 206 provides important guidance for investment banks involved in capital raisings.
Deferred Implementation of Extended Black Out Period Rule - 6 January 2009
The implementation of one proposed change to the Hong Kong Stock Exchange Listing Rules has been deferred for three months. This Client Alert supplements our previous alert on 5 December 2008 on the Amendments to Hong Kong Stock Exchange Listing Rules 2009.
HKEx clarifies certain rule requirements for listed issuers
On 28 November 2008, The Stock Exchange of Hong Kong Limited (HKEx) published the Frequently Asked Questions on Rule Requirements relating to Notifiable Transactions, Connected Transactions and Issues of Securities by Listed Issuers (FAQs).
New Australian short selling regime - 16 December 2008
The Corporations Amendment (Short Selling) Act 2008 became law on 11 December 2008. The three key measures include a legislative ban on naked short selling, a disclosure regime for permitted covered short selling, and clarification of the Australian Securities and Investments Commission's (ASIC) powers.
Australian Government releases guarantee scheme documents - 21 November 2008
The Australian Government (“Government”) has today published its guarantee facility under which Australian authorised deposit-taking institutions (“ADIs”) may apply to have deposit amounts over A$1 million and certain funding liabilities guaranteed by the Government. Foreign banks (“Foreign ADIs”) authorised to carry on banking business in Australia under the Banking Act 1959 may also apply to have certain deposits and funding liabilities held by Australian residents guaranteed by the Government.
Australian government introduces depositor protection legislation - 15 October 2008
The Australian government has today introduced legislation into the Australian parliament to implement the Financial Claims Scheme. This is to be the legislation under which the Government’s announced 100 per cent protection of deposits with Australian Authorised Deposit-taking Institutions (ADIs) is to be implemented.
Retail disclosure standards in Hong Kong - 10 October 2008
Issuers of structured products in Hong Kong must consider whether their offering and advertising materials adequately disclose the risks affecting investors’ returns as a result of current market conditions.
Government to invest in Australian RMBS - 29 September 2008
The Australian Government announced on 26 September 2008 that the Australian Office of Financial Management (AOFM) will purchase Australian RMBS in two initial tranches of $2 billion each.
ASIC modifies covered short selling ban - 23 September 2008
Late yesterday the Australian Securities and Investments Commission (ASIC) further modified the ban it introduced on covered short selling to extend it to managed investment schemes and stapled securities. This will be reviewed in 30 days along with the ban in relation to securities. See the ASIC explanatory statement and class order.
ASIC bans naked and covered short sales from 22 September
The Australian Securities and Investments Commission (ASIC) banned covered short selling in the Australian market late on Sunday 21 September 2008. This followed an earlier move by ASIC on Friday 19 September 2008 to ban naked short selling and introduce reporting for covered short sales.
Mutual Recognition Agreement between the US and Australia - 29 August 2008
This week the Australian Securities and Investments Commission, the US Securities and Exchange Commission and the Australian Minister for Superannuation and Corporate Law, entered into a mutual recognition arrangement. Initially it will be limited to certain national exchanges and broker dealers who deal with institutional clients.
Non-traditional Undocumented Rights Issues - ASIC Class Order - 15 May 2008
Accelerated rights issues can now be done without a disclosure document - such as a prospectus or product disclosure statement.
Australian court confirms absolute transfer - 2 May 2008
The Federal Court of Australia has confirmed the validity of the absolute transfer provisions in security lending documents. Today, Justice Finkelstein of the Federal Court of Australia handed down his decision on a preliminary, but critical, question arising from the failure of Opes Prime Stockbroking Ltd.
Australian court confirms absolute transfer - 2 May 2008
The Federal Court of Australia has confirmed the validity of the absolute transfer provisions in security lending documents. Today, Justice Finkelstein of the Federal Court of Australia handed down his decision on a preliminary, but critical, question arising from the failure of Opes Prime Stockbroking Ltd.
UK Companies Act 2006 - April 2008 implementation - 2 April 2008
The UK Companies Act 2006 is being implemented in stages. In our last Alert on the Act we outlined some of the provisions that came into force on 1 October 2007. This Alert briefly describes some changes to the implementation timetable and the more significant provisions coming into force on 6 April 2008.
ASIC changes policy on secondary sale relief for convertible bonds - 17 March 2008
Until recently ASIC had been prepared to grant secondary sales relief in connection with most offers of convertible bonds made by Australian issuers into the offshore institutional markets, but that is about to change…
Managed investment scheme issuers are now subject to anti-money laundering laws - 30 January 2008
On Thursday 31 January 2008, the Anti-Money Laundering and Counter-Terrorism Financing Regulations 2008 will take effect under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (AML/CTF Act).
Undocumented Rights Issues and Non-traditional Rights Issues - ASIC Relief Update - 2 October 2007
The new legislative regime introduced by the Corporations Legislation Amendment (Simpler Regulatory System) Act 2007 (No 101) (Amendment) permits rights issues under the Corporations Act without formal disclosure.
AUSTRAC clarifies treatment of securities dealing and other AML/CTF Act developments - 31 August 2007
On Friday 31 August 2007, the Australian Transaction Reports and Analysis Centre (AUSTRAC) released draft anti-money laundering and counter-terrorism financing (AML/CTF) Rules.
Personal property security reform - Will you be affected? - 28 May 2007
In our previous Review, we outlined the current proposal to reform the law on personal property securities (PPS), including the proposal to replace the current system of registration with a single national register. In this Review, we examine which types of transactions may be affected by the PPS reform.
Latest proposed changes to the section 128F interest withholding tax exemption - 16 May 2007
On 10 May 2007, Tax Laws Amendment (2007 Measures No. 3) Bill 2007 (Bill) was introduced to Parliament. The Bill includes proposed amendments which narrow the scope of the interest withholding tax (IWT) exemption in section 128F of the Income Tax Assessment Act 1936 (section 128F exemption) in relation to “debt interests” which are not in the form of debentures.
ASX recommends listed trusts improve corporate governance reporting - 3 November 2006
On 24 October 2006, ASX announced its first specific review of corporate governance reporting by listed trusts. The review assessed compliance with the ASX Listing Rules and the ASX Corporate Governance Councils Good Corporate Governance Principles and Best Practice Recommendations. There are likely to be further developments, particularly concerning disclosure of director independence and remuneration.
Corporate class actions in Australia - 15 June 2006
A comprehensive review of the increasing trend towards Australian corporate class actions.
Lessons from Australia as Asian REITs thrive - 12 April 2006
Recent developments in Hong Kong and Singapore are stimulating growth in REIT activity. But the regulatory environment can still be improved, argue John Sullivan and Hayden Flinn. This article was published in International Financial Law Review March 2006.
Are hybrids too complex? - 8 December 2005
The term “hybrid” covers a wide range of financial products which are neither “pure” equity (ordinary shares) nor “pure” debt (deposits or loans).
Real estate investment trusts - 28 October 2005
Recent positive regulatory developments in Hong Kong and Singapore make it an exciting time for real estate investment trusts. There are now seven REITs listed in Singapore and it is anticipated there will shortly be REIT listings in Hong Kong. The regulatory developments should encourage further growth in domestic and cross-border REIT activity. While several of the regulatory changes aim to accommodate overseas investments, all REITs listed in Hong Kong and Singapore are affected by the developments.
Payment of interest following default under ISDA Master Agreement - 30 September 2005
The NSW Court of Appeal has ruled on the obligations of the parties under an ISDA Master Agreement to pay interest following an event of default.
Banking and finance alert - 23 May 2005
Basel II - APRA releases discussion paper on the standardised approach to credit risk and draft Prudential Standard.
Banking and finance alert - 3 March 2005
The ASX has announced its decisions on the reforms proposed by the market consultation paper Enhancing the Liquidity of the Australian Equity Market and released a new Key Risks and Internal Systems Statement for ASX market participants and ACH clearing participants.
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