A significant newly enacted class actions regime has come into force in Western Australia, as of 25 March 2023.
The Civil Procedure (Representative Proceedings) Act 2022 (WA) ("Act") was enacted in September 2022,...more
In Short -
The Situation: The High Court of Australia has confirmed in Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 that the "peak indebtedness rule" is no longer available to liquidators when assessing the...more
In Short -
The Situation: Historically, creditors pursued by liquidators under the unfair preference regime could rely on a statutory set-off as a defence to the claim, reducing or eliminating their liability to repay...more
This edition of the Update covers:
Recent legal and regulatory developments, including guidance to APRA-regulated entities following the cyber attacks on Medibank and Optus, the release of the inaugural Climate...more
In Short -
The Situation: When winding up a company, liquidators must distribute any surplus funds following the satisfaction of any secured debts. The Corporations Act 2001 (Cth) contains a regime which provides that...more
Recent legislative and regulatory developments, including the Federal Government's draft regulations to deregulate litigation funding in class actions and the Civil Procedure (Representative Proceedings) Bill 2021, which...more
This edition of the Update covers: -
Recent legal and regulatory developments, including the commencement of cyber security incident notification obligations for critical financial market infrastructure assets, AUSTRAC's...more
More Detail: Regulation of Litigation Funding in Class Actions
In 2009, the Full Court of the Federal Court of Australia, in Brookfield Multiplex Ltd v International Litigation Funding Partners Pty Ltd [2009] FCAFC 147,...more
Background -
In February 2020, the Corporations Act 2001 (Cth) ("Act") was amended to add a new class of voidable transactions for companies that are being would up known as "creditor-defeating dispositions". This change was...more
This edition of the Update covers:
Recent legal and regulatory developments, including the release of regulatory guidance on crypto asset-related investment products, the imposition of additional licence conditions on the...more
Background -
During a winding up, the statutory duty of a liquidator is to gather in the estate of the company, which includes recovering any amounts owing to the company. Creditors then submit proofs of debt and receive...more
This edition of the Update covers:
KEY LEGAL AND REGULATORY DEVELOPMENTS
Regulatory Priorities
ASIC and APRA Release Their Corporate Plans for 2021-25
On 26 August 2021, the Australian Securities & Investments Commission...more
12/1/2021
/ AML/CFT ,
ASIC ,
Australia ,
Criminal Investigations ,
Cybersecurity ,
Enforcement Actions ,
Environmental Social & Governance (ESG) ,
Financial Institutions ,
Financial Markets ,
Financial Regulatory Reform ,
Financial Services Industry ,
Libor ,
Loans ,
Popular ,
Prudential Standards ,
Regulatory Agenda
Australia's product liability regime is a combination of provisions contained primarily in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). These provisions apply to Australian made...more
A Refresher: Running Account Defence and Peak Indebtedness Rule -
The Full Court's decision was an appeal from a first instance judgment, in which the liquidators for Gunns Limited ("Gunns") successfully argued that 11...more
This edition of the Update covers: Key Legal and Regulatory Developments Financial Markets The Australian Regulators Reiterate Their Expectations for a Smooth Transition Away From LIBOR On 4 June 2021, ASIC, APRA, and the RBA...more
7/21/2021
/ AML/CFT ,
ASIC ,
AUSTRAC ,
Australia ,
Enforcement Actions ,
Exchange-Traded Products ,
Financial Institutions ,
Financial Markets ,
Financial Regulatory Reform ,
Financial Services Industry ,
Inter-Bank Offered Rates (IBORs) ,
ISDA ,
Libor ,
Over The Counter Derivatives (OTC) ,
Regulatory Agenda ,
Short Selling
This edition of the Update covers:
1. Recent legal and regulatory developments, including the release of ASIC's immunity policy for market misconduct offences, a FATF consultation on proliferation of financial risk and...more
There is no "one size fits all" approach to competing class actions.
Five competing and overlapping shareholder class actions were commenced in two separate Australian courts against AMP Limited. All actions were...more
This edition of the Update covers:
1. Recent legal and regulatory developments, including the release of APRA's policy and supervision priorities for 2021, the launch of APRA's Cyber Security Strategy 2020 – 2024,...more
During the better part of 2020, the federal government has injected an unprecedented level of stimulus into the Australian economy in an attempt to mitigate the economic impact of COVID-19. As a result, despite a significant...more
10/15/2020
/ Australia ,
Bankruptcy Reform ,
Commercial Bankruptcy ,
Coronavirus/COVID-19 ,
Creditors ,
Debt Restructuring ,
Insolvency ,
Landlords ,
New Rules ,
Relief Measures ,
Small Business
This edition of the Update addresses:
1. Recent legal and regulatory developments which relate to licencing and regulatory relief, consumer protection, financial markets, anti-money laundering and capital and prudential...more
The Situation: When determining and quantifying unfair preference claims in Australia, does the Corporations Act permit liquidators to value transactions forming part of a single "continuous business relationship" (such as a...more
The Western Australian government has sought industry comment on a suite of significant proposed reforms to the WA security of payment regime ("SOP"). If passed, the Bill represents the most significant reform to the...more
8/14/2020
/ Australia ,
Construction Contracts ,
Construction Industry ,
Construction Project ,
Contract Drafting ,
Contract Terms ,
Coronavirus/COVID-19 ,
Dispute Resolution ,
International Litigation ,
Notice Requirements ,
Proposed Amendments
The Situation: The Australian Federal Government announced a mandatory code of conduct ("Code") to regulate the complex arrangements that have arisen between commercial landlords and small to medium-sized enterprise (SMEs)...more
The Situation: Should liquidators be personally liable for the costs of unsuccessful appeals, without an entitlement to reimbursement by the company or its creditors in relation to those costs?
The Conclusion: The general...more
The Situation: A liquidator can reject a "double proof" for what is, in substance, the same debt as another accepted proof of debt.
The Question: When are liquidators justified in rejecting what could arguably be a double...more