Regulator - November 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Octaviar, round 3 - the saga continues. What should we do now? - 19 October 2009
As we reported on 16 October, in the ongoing Octaviar matter an application was lodged with the High Court on Thursday 15 October 2009 for special leave to appeal against the decision of the Queensland Court of Appeal, which had overturned the unsettling first instance judgement.
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.
Mallesons acts on ground breaking Opes Prime scheme of arrangement - 7 September 2009
On Friday, the Full Federal Court affirmed Justice Finkelstein’s decision to approve the Opes Prime schemes of arrangement.
Regulator - 2nd edition - 14 August 2009
Lehman Brothers’ priority provisions upheld - 5 August 2009
The High Court of England and Wales recently upheld the priority given to investors over the rights of Lehman Brothers as a swap counterparty in a credit-linked note structure. This means that, as a matter of English law, Lehman Brothers’ default under the swap will cause it to rank behind the investors on the application of the collateral which secures the amounts owed to the investors and Lehman Brothers.
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
China issues new corporate restructuring tax rules - 15 May 2009
China has released new rules on the tax treatment of various types of corporate reorganisations, including equity and asset acquisitions, mergers, debt restructurings and enterprise spin-offs. These rules fill a gap that has existed since China’s new Corporate Income Tax Law (CIT Law) became effective on 1 January 2008 and provide clarity and guidance on what tax treatment applies during a restructure and how to qualify for the available tax benefits.
The reincarnation of the administrator’s equitable lien - 14 May 2009
In our insolvency alert The Demise of the Equitable Lien for Insolvency Practitioners’ Fees and Costs? published in late 2007, we noted the risks and uncertainty for insolvency practitioners following a number of single judge decisions which seemed to unduly erode the “salvage principle” upon which the insolvency practitioner’s equitable lien is based. However, the recent decision of the Western Australian Court of Appeal in Coad v Wellness Pursuit Pty Ltd [2009] WASCA 68 (Coad) has refused to follow those decisions in holding that the administrator’s equitable lien is separate and distinct from the statutory lien and, unlike the statutory lien, is not limited to priority over floating charge assets. The decision provides a useful summary of the numerous authorities in respect to insolvency practitioner’s liens and the salvage principle.
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.
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.
Federal Court Decision: Liquidators not personally liable for GST - 15 December 2008
On 12 December, Logan J of the Federal Court handed down his decision in a GST “test case”. The case involved the sale of “new residential premises” (which attracted GST) by a liquidator that had been appointed to a company. The question was which entity is liable for the GST on the sale: the liquidator (personally) or the company?
The Demise of the Equitable Lien for Insolvency Practitioners' Fees and Costs? - 13 September 2007
The issue of insolvency practitioners’ fees and costs has been the subject of much judicial and public scrutiny. To date, much of the attention has focussed upon the procedure and basis for determining the reasonableness of the insolvency practitioner’s fees and costs.
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.
It's time to start thinking about personal property security reform - 9 May 2007
Reforming the law on personal property security (PPS) in Australia has been on the agenda for some time. However, the most recent proposal appears to be gaining momentum (including allocation of funding for the reform announced in last night’s budget). So it may be time to start thinking about how the proposed changes will affect your business.
Sons of Gwalia: shareholders as creditors - 1 February 2007
Are misled shareholders now to be treated equally with ordinary creditors in insolvency? For the moment, the answer is yes.
Increased redundancy pay under GEERS - 29 August 2006
On 22 August 2006, the Minister for Employment and Workplace Relations, Kevin Andrews, announced that the amount of unpaid redundancy pay under the General Employee Entitlements and Redundancy Scheme (GEERS) is to be doubled to 16 weeks.
Is there sufficient support for personal property securities law reform in Australia? - 24 April 2006
Australia has started down the path to change its personal property securities law to match USA, Canada and New Zealand. This could lead to a single national electronic scheme affecting all property other than interests in land. The Attorney-General, Philip Ruddock is driving the change. An Options Paper invites your comments by 2 June 2006.
Sons of Gwalia Limited - Federal Court appeal unsuccessful - 14 March 2006
Sons of Gwalia Limited is currently the subject of a deed of company arrangement. An investor, Mr Margaretic had bought Gwalia shares on the market 11 days before Gwalia went into administration. He claimed he was misled by the company, and that as a consequence he had claims against the company in damages.
Sons of Gwalia Limited - 10 October 2005
Members as creditors: Sons of Gwalia Limited (Administrators Appointed) v Margaretic [2005] FCA 1305.
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