Corporate Advisory Bulletin – 16 December 2014

December, 2014

In the media

Murray urges ‘accommodative’ crowdfunding regulation

The Financial System Inquiry has recommended the government update fundraising regulation to facilitate crowdfunding for debt and equity, and potentially other forms of financing in the future
Under a crowdfunding regime the ‘crowd’ provides small amounts of money to projects or small businesses via an online platform or facilitator.

The report restated that this process is essential to the facilitation of productivity growth and job creation in the Australian economy. It stated that a well-developed system could allow for more innovation and competition in the financial system, for example in the area of SMEs and start-ups.

Crowdfunding is an alternative funding source to small enterprises which currently have more limited access to external funding and higher funding costs than larger corporations. The most prominent models are securities-based crowdfunding and peer-to-peer lending.

The report however noted the risks associated with crowdfunding investments and the need for clearly communicating the risks to investors.

To read more, please click here.

ASIC takes legal action against Sino Australia Oil and Gas and its former chairman

ASIC has taken legal action against Sino Australia Oil and Gas Limited (SAO). In December 2013 SAO listed on the ASX after raising around $13 million from investors.

In its civil action against Tianpeng Shao, SAO’s former chairman and executive director, ASIC is seeking from the court:

Earlier this year ASIC obtained an injunction against the transfer of funds following concerns SAO was about to transfer $7.5 million for undisclosed purposes to bank accounts in China. That figure represented almost all the cash held by SAO in Australia.

This is an ongoing investigation by ASIC. A directions hearing in the Federal Court in Melbourne is listed for 6 March 2015.

In practice and courts

ACCC helping franchising sector to get ready for the new code

From 1 January 2015, the current Franchising Code will be repealed and replaced with a new Code which will apply to all franchise systems operating in Australia. The ACCC’s enforcement priorities under the new Code will include failure to act in good faith, failure to provide a disclosure document, refusal to attend mediation, and the unlawful termination of a franchise agreement.

The ACCC has developed guidance on the new Code, including an updated Franchisee Manual and Franchisor Compliance Manual, which will be launched on 9 December 2014.

To read more, please click here.

Consultation – Exposure Draft: Corporations Amendment (Remuneration Disclosures) Regulation

The Treasury has released the Exposure Draft: Corporations Amendment (Remuneration Disclosure) Regulation 2014 for public comment.

The draft Regulation would make a number of amendments to the Corporations Regulations 2001 No. 193 (Cth), including to clarify the scope of the disclosures in relation to certain limited-recourse loans to ensure that the scope of disclosures is consistent with accounting practices.

Comments on the exposure draft Regulation be lodged online by 15 December 2014.

The Exposure Draft can be found here.

Further information from the Treasury can be found here.

Cases

Office of Finance and Services v APV and APW [2014] NSWCATAP 88

In this case the Appeal Panel of the NSW Civil and Administrative Tribunal considered whether information contained in a document about a residential property was “personal information” about the owners or occupants of the property under NSW privacy legislation even if the document doesn’t directly identify the owners or occupants.

In issue in this case was a 99 year lease held by APV and APW from the State over residential property in Sydney. The State let the property, which was one of several need conservation works in a sensitive area, to members of the public through a tender process. The APV and APW were one of the earlier successful tenderers.

APV and APW agreed to undertake renovation work and conservation work worth around $1 million over two years. The State organised for a conservation architect to prepare a conservation management plan and a schedule of works for adjacent properties. This was so that the State could ensure, as a term of the lease, that incoming lessors of the adjacent properties maintain those properties in accordance with APV and APW.

The management plan included the address of APV and APW’s property and contained information and photographs about works which had been carried out by APV and APW. It did not however contain names or photographs of the individuals of APV or APW.

APV and APW objected to the Office of Finance and Services’ use of the conservation management plan on the basis that those documents contained personal information about APV and APW and that the use of that information contravened a number of provisions of the NSW Privacy and Personal Information Act.

Personal information is defined in the Act as: “information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion”.

The Appeal Panel found that the information was “personal information” about APV and APW. The Appeal panel gave significant consideration to the fact that it was possible to conduct an online search of the address of the APV and APW property on the Office of Finance and Services website and discover that APV and APW were the successful tenderers. The Appeal Panel held that:

The definition of personal information states that the information is about an individual “whose identity is apparent or can reasonably be ascertained from the information or opinion.” Those words do not mean that other material cannot be consulted. That is obvious from the fact that there are two ways in which information or an opinion may disclose a person’s identity. Either the identity is “apparent” from the information or it “can reasonably be ascertained” from that information. The dictionary definition of the adjective “apparent” is “capable of being clearly perceived or understood; plain or clear.” (Macquarie Dictionary online). The verb “ascertain” means “to find out by trial, examination, or experiment, so as to know as certain; determine.” (Macquarie Dictionary online). By including the option that a person’s identity can “reasonably be ascertained” from the information, the legislature was intending to allow a person to find out or determine the identity of the person from the information and, where reasonably identifiable from other information, from that other information.”

To read more, please click here.

Contact Mills Oakley

Melbourne Sydney Brisbane
warren-scott-mills-oakley

Warren Scott
(03) 9605 0984
wscott@millsoakley.com.au

warwick-painter-mills-oakley

Warwick Painter
(02) 8289 5808
wpainter@millsoakley.com.au

tim-cox-mills-oakley

Tim Cox
(07) 3228 0442
tcox@millsoakley.com.au

daniel-livingston-mills-oakley

Daniel Livingston
(03) 9605 0965
dlivingston@millsoakley.com.au

simon-champion-mills-oakley

Simon Champion
(02) 9035 7926
schampion@millsoakley.com.au

 

Privacy Policy | Terms of Use