Corporate & Commercial Fortnightly Update – 20 February 2014

February, 2014

In the media

ASIC extends short PDS relief

ASIC has extended interim class order relief from the shorter product disclosure statement (PDS) regime for multi-funds, superannuation platforms and hedge funds for a further 12 months, to June 30, 2015. The full PDS requirements under the Corporations Act 2001 apply to products that have been excluded from the shorter PDS regime (12 February 2014)

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ASIC cancels Capital Advisers’ licence

ASIC has cancelled Capital Advisers Pty Ltd’s (Capital Advisers) Australian Financial Services (AFS) licence. ASIC has also cancelled Capital Advisers’ Australian credit licence. The cancellations follow ASIC concerns the group was unable to comply with its licence conditions and it subsequently going into voluntary administration (12 February 2014)

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Reduce employee share schemes’ red tape and move the taxation point

With the government currently consulting on employee share schemes for start-ups and ASIC issuing draft regulatory guidance for companies on such schemes, Governance Institute took the opportunity to make the point that these schemes are facing significant challenges (11 February 2014)

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Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35

BANKING AND FINANCIAL INSTITUTIONS – law of penalties – penalties at law – penalties in equity – genuine pre-estimate of damage – breach of contract – collateral or accessory stipulation – security for, and in terrorem of, satisfaction of primary stipulation – further accommodation – alternative mode of performance – inherent circumstances – extravagant and unconscionable – loss and damage – late payment fee – honour fee – dishonour fee – overlimit fee – non-payment fee – card accounts – saving accounts – business accounts – unconscionable conduct – unjust transactions – unfair contract terms – limitation defences

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Columbus Investment Services Ltd [2014] NSWSC 47

Order that the costs of this application, calculated on an indemnity basis, be paid out of the EQUITY – trusts and trustees – plaintiff responsible entity of registered scheme – purpose of scheme cannot be accomplished – notice given to unit holders under s 601NC Corporations Act – unit holders resolve that registered scheme be wound up – doubt about validity of proxy – unit holder declines to execute release under constitution – complaint to ASIC – application for judicial advice that plaintiff may wind up registered scheme and distribute assets –  Corporations Act 2001 (Cth)

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Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 17) and 13 related matters [2014] NSWSC 55

TRADE PRACTICES – misleading or deceptive conduct – the operation of the Trade Practices Act 1974 (Cth) (TPA) ss 51A, 52 and 59(2) – the operation of the Fair Trading Act 1987 (NSW) (FTA) ss 41, 42 and s 54(2) – the relevance of a disclaimer in determining whether conduct was misleading or deceptive – the circumstances in which silence can be misleading or deceptive – the making of implied representations of fact – whether, on the facts of this case, the alleged implied representations were drawn by the plaintiffs – what constitutes a future matter within the meaning of the TPA s 51A and the FTA s 41 – the burden of proof under the TPA s 51A and the FTA s 41 – whether the defendant had reasonable grounds for the representations concerning a future matter within the meaning of the TPA s 51A and the FTA s 41 – the limitation period on a claim for personal injury for misleading or deceptive conduct – the application of the TPA ss 82(2) and 87E
TRADE PRACTICES – unconscionability – the operation of the TPA ss 51AC – the effect of the TPA s 51AA(2) on a claim under s 51AA in circumstances where a claim is made under s 51AC – what constitutes unconscionable conduct within the meaning of the TPA s 51AC – the operation of the  Franchising  Code of Conduct cl 16(1) – the limitation period on a claim for unconscionable conduct – the application of the TPA s 87F
TORTS – negligent misstatement – whether the defendant had a duty to take reasonable care in making representations to potential  franchisees  – whether the defendant had a duty of care not to express opinions unless it had reasonable grounds for doing so – whether the defendant breached that duty of care.

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