Corporate & Commercial Fortnightly Update – 10 October 2013

October, 2013

In the media

Chief Justice raises uncertainty over D&O cover

NSW Chief Justice Tom Bathurst has called for further discussion on the operation of directors’ and officers’ insurance. He told the Australian Insurance Law Association (AILA) national conference there must be certainty in the law applying to commercial activity (07 October 2013)

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ACCC releases discussion paper in cartel immunity policy review

The ACCC has released a public discussion paper inviting comment upon several key issues arising from its review of the ACCC Immunity Policy for Cartel Conduct. Given the importance of an immunity program, the ACCC regularly reviews the effectiveness of its immunity policy  (03 October 2013)

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ACCC publishes updated informal merger review process guidelines

The ACCC has released the ACCC’s Informal Merger Review Process Guidelines 2013. The Guidelines have been updated to reflect important recent developments in the ACCC’s approach to merger reviews, as well as incorporating some additional changes aimed at improving efficiency and transparency (27 September 2013)

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Published – articles, papers, reports

ASX AGM – Chairman and Managing Director and CEO’s addresses

Author: Australian Stock Exchange: 25 September 2013

Chairman and Managing Director and CEO’s address, presented on September 2013, on capital raising, financial markets regulation, leadership , board renewal

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Board Composition and Non-Executive Director Pay in Top 200 Companies: 2012

Author: ASCI: released 25 September 2013

This study provides an overview of the composition of S&P/ASX 100 and S&P/ASX 101–200 company boards, including director roles, independence, gender, remuneration, tenure, and age

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Cases

Vendor Advocacy Australia Pty Ltd v Seitanidis [2013] FCA 971

TRADE PRACTICES – misleading and deceptive conduct – use of similar domain and trading names by rival businesses – whether secondary meaning in its name was established by the applicant – causation and the extent of differentiation from a descriptive name required to avoid finding of likely deception – whether sufficient nexus between conduct of respondent and any likely misconception or deception – whether a not insubstantial number of consumers were likely to have been misled or deceived – whether any likely deception was transitory – relevance of any intent of the respondent to take advantage of applicant’s reputation. Applicant company Vendor Advocacy Australia Pty Ltd (‘VAA’) has carried on a business in Australia of representing and advising owners of real estate in selling their properties and in their dealings with real estate agents.

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Chan v Four C Realty Pty Ltd (in liq), in the matter of Four C Realty Pty Ltd (in liq) (No 2) [2013] FCA 959

CORPORATIONS – application under s 477(2B) of the Corporations Act 2001 (Cth) for retrospective approval of contract for sale of business – purchaser’s long-term obligation to indemnify insolvent company in respect of contingent liabilities – liquidators’ commercial judgment – factors relevant to exercise of Court’s discretion Corporations Act 2001 (Cth)

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Amir Ashrafinia v Mohammad Reza Ashrafinia; Parvaneh Karami Fakhrabadi v Mohammad Reza Ashrafinia [2013] NSWSC 1442

TRUSTS – breach of trust – Barnes v Addy knowing receipt or knowing assistance claims against the directors of the corporate trustee and third parties – whether Barnes v Addy knowledge requirements satisfied.

CORPORATIONS – breach of directors’ duties by the directors of the corporate -trustee – whether directors acted honestly and reasonably and should be excused from personal liability for breaches of duties under Corporations Act 2001 s 1318.

PROCEDURE – limitation period – whether limitation period in relation to the pleaded breaches of trust expired – when did the relevant limitation period start running – whether limitation period in relation to the claim for constructive trust over the food business expired or whether the doctrine of laches operates.

CONTRACTS – two brothers, directors of the corporate trustee, bought several properties as co-owners – whether the properties purchased with trust funds – whether the properties owned by the brothers beneficially or on behalf of the trust – whether the brothers entered into a joint venture agreement in relation to the properties – whether one of the brothers misapplied proceeds from the joint venture properties to his own benefit and should be required to refund the misapplied amounts.

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Re Llenruk Pty Limited; Sim v Australian Securities and Investments Commission and Ors [2013] NSWSC 1430

Order for reinstatement of deregistered company, with ancillary orders

CORPORATIONS – Dissolution – Deregistration – Reinstatement – Who can apply – Whether just to reinstate the registration of a company – Corporations Act 2001 (Cth), s 601AH

Corporations Act 2001 (Cth) s 601AH(2), s601AA, s 601AH(3), s 601AH(5), 601AH(2)(a)(i), s 601AH(2)(b), s 601AH(2)(a), s 601AH(3)(b); Limitation Act 1969 NSW s14, s63

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