Opinion

September 25,2014

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Australia’s PPSA causes international ructions

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In February 2014 the ANZ bank appointed receivers to one of its mining services customers, the Forge Group. About $300 million was owed to the ANZ and some asset insurers, substantially in connection with leased equipment which had been financed by the bank and the insurers. The Forge group is now in liquidation. Part of (Read More…)

August 20,2014

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PPSA statutory review – preliminary report

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In August 2014 the Federal Government released its preliminary report on the operation of the Personal Property Securities Act (the “PPSA”). This report will be followed in January 2015 with a final report on what changes, if any, should be made to the PPSA. Rationale of PPSA: The basis of the PPSA is that ownership (Read More…)

January 22,2014

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Opportunity ends for grandfathering of PPSA security interests

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On 31st January 2014, the 2 year window of opportunity ends for holders of security interests in personal property. If you own goods or things in the possession of others this affects you. Following that date, the completed or ‘perfected’ status of security interests in personal property – things like cars & trucks, inventory, plant (Read More…)

August 22,2013

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Self-Managed Superannuation Funds

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The decision of McDougall J of the NSW Supreme Court in the case of The Estate of Edith Macdougall [2013] NSWSC 990 highlights the importance for a trustee of a self-managed superannuation fund (SMSF) having in place an Enduring Power of Attorney (EPoA). Failure to have an EPoA in favour of the other trustee can (Read More…)

May 13,2013

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Early payouts under goods leases remain unaffected by recent case on penalties

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In the recent case of Andrews v Australia & New Zealand Banking Group Ltd (2012) 290 ALR 59 (“Andrews”), the High Court decided that provisions in a contract deemed penal in nature would be unenforceable not just upon breach, but irrespective of whether or not the contract proceeded to completion. In other words, if a (Read More…)

April 11,2013

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A lender’s “sign-off” does not mean documents deemed compliant are legally enforceable

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In the recent case of Commonwealth Bank of Australia v Chamos [2012] NSWSC 1345, the borrower Mr Chamos argued that by virtue of the bank’s sign-off on his apartment development’s underlying pre-sale contracts the bank was implicitly saying that the contracts were enforceable as a matter of law. The NSW Supreme Court said no. Despite (Read More…)

March 24,2013

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Specific Regulation of Small Business Finance off the agenda

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At a recent meeting in Parliament House the Minister for Financial Services Bill Shorten announced that the government had decided to withdraw its proposed laws to specifically regulate the provision of credit to small business borrowers. Instead the status quo of industry self-regulation will prevail. The key proposal had been that lenders, goods lessors and finance (Read More…)

March 12,2013

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Guarantees and secured loans

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Business borrowers have once again been reminded (if they needed reminding) that, should they go into default under their banking facilities they are entirely at the bank’s mercy. The lender has virtually a free hand in deciding whether it sells the secured property first, or takes the more likely course of suing on a personal (Read More…)

March 01,2013

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Linked Credit Providers

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Financiers worried about the breadth of the linked credit provider provisions (in section 278) of the Australian Consumer Law (“ACL”) (formerly section 73 of the Trade Practices Act (“TPA”)) can take some comfort from the recent decision of the Full Federal Court of Australia in Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited (Read More…)

February 27,2013

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Exclusion clauses in commercial contracts

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The case of LA Rosa v Nudrill [2013 WASCA 18] is a practical reminder that so-called exclusion clauses will not always help a contracting party escape from the consequences of its negligence. Usually an exclusion clause will be expressed in the terms found in the La Rosa case, to the effect that all goods are (Read More…)

February 14,2013

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Solar energy supply agreements

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Electrical and building contractors are entering the burgeoning photovoltaic (PV) system supply industry as a result of rising energy costs and favourable government policies including rebates and incentives. A key question for new solar energy players and their customers is how to absorb the relatively high up-front cost of acquiring and installing the PV system. (Read More…)