Corporate Advisory Update – 28 September 2015

September, 2015

In the Media

ASIC consults on fundraising class orders and guidance

ASIC has released a consultation paper covering proposals designed to further the extensive facilitation that ASIC relief and guidance plays in ensuring efficient public fundraising in Australia.

The proposals are to remake fundraising class orders that are due to expire, to update and consolidate its fundraising regulatory guidance and to issue two new legislative instruments aimed at helping reduce business costs.

For more information, please click here.

Waratah Resources executive chairman charged with misleading the market

Benjamin Kirkpatrick, Waratah Resources Limited’s executive chairman has been charged with offences under the Corporations Act for allegedly issuing false information to the market and assisting the company to breach its continuous disclosure obligations.

Kirkpatrick has been charged with knowingly authorising false or misleading information relating to Waratah Resources being made available to the Australian Securities Exchange (ASX). He has also been charged with aiding and abetting Waratah Resources in its failure to promptly notify the ASX of material information relating to the shares of Waratah Resources in accordance with its continuous disclosure obligations.

For more information, please click here.

In Practice and Courts

Dividend and Distribution Information

Listed entities declaring a dividend or distribution for the period ending 30 September 2015 are reminded that they must use ASX Online forms to announce the dividend or distribution and that if they wish to set a record date of 30 September 2015, they will need to announce the dividend or distribution by no later than 23 September 2015 (Day 0 in the Appendix 6A Paragraph 1 timetable).

Listed entities should include the information contained in paragraph 1 of Appendix 6A in such announcements.

ASX Periodic report due date reminder

Listed entities are reminded of upcoming deadlines for periodic reports:

New Foreign Exempt Listing Rules

Following a period of consultation, ASX has received regulatory approval to amend its Listing Rules to facilitate dual listings by New Zealand companies with a primary listing on the main board of the New Zealand Exchange (NZX).

The new rules came into effect on 8 September 2015 and are set out on ASX’s website. Read them here.

Cases

Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127

Facts

This case concerned a long running territory dispute between a franchisor, Spanline Weatherstrong Building Systems Pty Ltd (Spanline), whose business was the sale and installation of home additions, such as verandas and carports, and two franchisees, RPR Maintenance Pty Ltd (RPR) and Marmax Investments Pty Ltd (Marmax).

Spanline had entered into separate franchise agreements with RPR and Marmax, which granted the respective franchisees the exclusive right to conduct the franchised business in adjacent territories.

Marmax started completing jobs for customers who lived in RPR’s territory. Without RPR’s knowledge, Spanline had agreed to allow Marmax to service customers who contacted Marmax but resided in RPR’s exclusive territory.

Despite receiving numerous complaints from RPR, and examining its databases, Spanline concluded that there was nothing suspicious about Marmax’s business activity. After receiving further complaints, Spanline gave Marmax a warning; however Marmax continued to undertake work in RPR’s territory pursuant to its agreement with Spanline.

Spanline did not look into further complaints, insisting that it was not required to take further action as the dispute was between the two franchisees.

The Court’s Decision

Citing the decision in Montedeen Pty Ltd v Bamco Villa Pty Ltd [1999] VSCA 59, the Full Court said that ‘the avowedly exclusive nature of the right conferred on the franchisee…means that the franchisor is under a correlative obligation not to infringe that right whether by directly trenching upon it or by authorising another franchisee to do so.’

Because Spanline had granted an exclusive franchise, there was a reciprocal promise by Spanline not to establish or engage in the franchise business, or allow other franchisees to engage in the franchise business within the exclusive franchised territory.

This obligation formed an implied term of the franchise agreement, which Spanline breached by authorising Marmax to take on work in RPR’s territory.

RPR was awarded damages on the basis that it was likely they would have secured the jobs performed by Marmax. A discount was applied to the award to take account of the possibility that RPR may not have secured all of those jobs performed by Marmax.

For more information, please click here.

To find out more about any of the information in this update, please contact:

warren-scott

Warren Scott | Partner
T: +61 3 9605 0984
E: wscott@millsoakley.com.au

daniel-livingston

Daniel Livingston | Partner 
T: +61 3 9605 0965
E: dlivingston@millsoakley.com.au

stuart-gibson

Stuart Gibson | Partner
T: +61 3 9605 0092
E: sgibson@millsoakley.com.au

warwick-painter

Warwick Painter | Partner
T: +61 2 8289 5808
E: wpainter@millsoakley.com.au

gavin-douglas

Gavin Douglas | Partner
T: +61 2 8289 5855
E: gdouglas@millsoakley.com.au

simon-champion

Simon Champion | Partner
T: +61 2 8289 7926
E: schampion@millsoakley.com.au

tim-cox

Tim Cox | Partner
T: +61 7 3228 0442
E: tcox@millsoakley.com.au

stephanie-rowland

Stephanie Rowland | Partner
T: +61 8 6167 9806
E: srowland@millsoakley.com.au

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