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.
Changes to the National Consumer Credit Protection regime - 14 August 2009
The Government has announced an accelerated timetable for “responsible lending” requirements. From January 2010 - in less than four months - these will affect finance brokers, and lenders other than authorised deposit-taking institutions and registered financial corporations. Responsible lending obligations will affect other lenders from January 2011, in line with the previously announced timetable. Also, the extension of the Code to residential investment lending will be delayed to July 2010. In a further development affecting all credit providers, draft regulations have been released. These include key exemptions from the licensing provisions.
Regulator - 2nd edition - 14 August 2009
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
PPS Bill: major changes to personal property securities registration - 30 June 2009
Proposed changes to the Personal Property Securities Bill 2009 (PPS) recently introduced into the House of Representatives, signfies an overhaul of the registration of securities.
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 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.
Release of new margin lending & securities lending regulation - 7 May 2009
The Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 was released today. This Bill (together with the National Consumer Credit Protection Bill 2009 that was released last week) implements phase 1 of the Government's Action Plan for the regulation of credit. The Bill will have a significant impact on any person that issues, or provides advice in relation to, margin lending or securities lending facilities.
New mortgage rules for NSW - 7 May 2009
The Real Property and Conveyancing Legislation Amendment Bill 2009 was passed by the NSW Parliament on 6 May 2009. The Bill makes important changes to the law regarding the execution of Torrens title mortgages in NSW. It is a response to the growing threat of mortgage fraud - in particular, "identity theft" - as well as the growing number of claims against the Torrens Assurance Fund arising out of forged mortgages. The Bill will commence on a date to be proclaimed.
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.
Release of National Consumer Credit Protection Bill 2009 - 27 April 2009
A public exposure draft of the National Consumer Credit Protection Bill 2009 was released today. The Bill implements phase 1 of the Government’s Action Plan for single, standard, national regulation of consumer credit. The Bill will have a significant impact on any person involved in the origination, management and enforcement of both consumer credit and credit provided to purchase, renovate or improve residential property for investment purposes. The key features of the bill include the establishment of a national licensing regime and the creation of responsible lending obligations. Submissions on the Bill are due by Friday, 22 May 2009.
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.
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.
RFP invited for AOFM mortgage backed securities proposal - 14 October 2008
The Australian Office of Financial Management (AOFM) announced yesterday that it was inviting the submission of a first round of proposals from arrangers of RMBS issues.
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.
Personal Property Securities Bill released - 16 May 2008
A consultation draft of the Personal Property Securities Bill 2008 (Bill) was released for public comment today.
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.
Personal property securities reform still on the agenda - 14 March 2008
The Australian Attorney-General has confirmed that the Australian Government remains committed to reforming the law on personal property securities (PPS) and that it plans to release exposure draft legislation shortly.
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).
High Court decides holdbacks must be disclosed in CCC contracts - 4 January 2008
The High Court confirmed on 12 December 2007 that where a credit provider lends money under a Consumer Credit Code regulated contract for a borrower to pay a supplier, but retains a portion of the sum lent pursuant to a side agreement with the supplier, s 15B(a)(ii) of the Code requires the credit contract to disclose that the credit provider is receiving that sum and the amount of the sum.
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.
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.
Anti-money laundering - AML/CTF Rules finalised - 2 April 2007
On 30 March 2007, the Australian Transaction Reports and Analysis Centre (AUSTRAC) made new Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) Rules under the AML/CTF Act 2006. These AML/CTF Rules relate to most AML/CTF obligations that commence on 12 June 2007 and on 12 December 2007.
AML/CTF Act has commenced - 14 December 2006
The Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) has commenced. It received Royal Assent on 12 December 2006. Some key obligations under the Act commenced on 13 December 2006 as follows.
Australian Parliament passes AML/CTF Acts - 7 December 2006
On 7 December 2006, the Australian Senate passed the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing (Transitional Provisions and Consequential Amendments) Act 2006. There are heavy penalties for non compliance.
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.
Finally …. legislative reform of NSW bills of sale and wool, stock and crop securities - 25 October 2005
Two of the oldest statutes in NSW (the Bills of Sale Act 1898 and the Liens on Crops and Wool and Stock Mortgages Act 1898) are to be repealed and replaced with a new Act. The Security Interests in Goods Bill 2005 received assent on 19 October 2005 and is expected to commence on 1 February 2006. If you are a financier who provides finance secured over agricultural produce or goods (or personal chattels) located in New South Wales, you need to review your security documents to ensure they are ready for this new regime.
Insight from APRA chief on APS120 changes - 9 September 2005
On Wednesday 7 September, Charles Littrell, Executive General Manager of APRA (Australian Prudential Regulation Authority), spoke at the "Fixed Income and Structured Credit Australasia Forum" in Sydney and gave some insight into the focus areas of APRA's changes to the prudential standards for securitisation.
Banking and finance alert - 15 July 2005
In June 2005, ISDA published international standard documentation for credit default swaps on asset backed securities. The documentation is likely to enhance industry efficiency (for bankers, lawyers and rating agencies alike) in the growing synthetic asset backed securities sector.
Banking and finance alert - 23 May 2005
Basel II - APRA releases discussion paper on the standardised approach to credit risk and draft Prudential Standard.
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