Corporate & Commercial Fortnightly Update – 22 November 2013

November, 2013

In the media

Rural Funds Management accused of takeover

A proposal to merge and list three agricultural property funds by Rural Funds Management (RFM) contravenes regulatory guidelines and is more reflective of a “takeover” scenario, according to a group of financial planners (19 November 2013)

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ANZ found not to have breached price fixing provisions

The Federal Court has today dismissed proceedings brought by the ACCC in alleging that Australian and New Zealand Banking Group Limited (ANZ) had breached the price fixing provisions of the Trade Practices Act 1974 (the Act), now Competition and Consumer Act 2010 (CCA) (18 November 2013)

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Woolworths and Coles agree to new code governing their commercial relationships with suppliers

The Food and Grocery Council says a new code of conduct will help protect its members from unfair treatment by the major supermarket chains. The code prohibits the supermarkets from using suppliers’ intellectual property to develop their own products and from changing contracts retrospectively (18 November 2013)

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In practice and courts

ASIC reviews employee incentive schemes

ASIC has released a Consultation Paper 218 on employee incentive schemes for persons offering and receiving shares or other financial products under an employee incentive scheme. It seeks feedback on ASIC’s proposals to extend relief currently in Class Order [CO 03/184] and Regulatory Guide 49 Employee share schemes (RG 49). The proposals reflect changes to the Corporations Act as well as developments in market practice for structuring employee share schemes (14 November 2013)

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CAMAC Annual Report

The Corporations and Markets Advisory Committee (CAMAC) has released its Annual Report 2012-13 (undated), which includes information on recent corporations and markets issues and developments concerning CAMAC and the outlook for 2013-14.

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Updated Discussion Paper – Crowd Sourced Equity Funding

The Corporations and Markets Advisory Committee (CAMAC) has made available an updated version of its Discussion Paper – Crowd sourced equity funding (updated October 2013) The updated paper takes into account various US, UK and European Commission regulatory updates from October 2013

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Forthcoming Conferences and Events 2013

The Essential Director Update – September -October 2013

The Essential Director Update is one of the most anticipated series in the company director’s calendar,  an exclusive, complimentary, member-only annual seminar held nationally.

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Westpac Banking Corporation v Lee [2013] NSWCA 375

MISLEADING OR DECEPTIVE CONDUCT – financial services – s 12DA Australian Securities and Investment Commission Act 2001 (Cth) – where respondents had not read the documents provided by the appellants in relation to a complex financial product – where strong reservations on credit had been expressed – whether respondents were led into error by the appellants in relation to the capital protection feature – whether the appellants caused the respondents’ loss – where post-facto evidence relied upon – dismissed

Australian Securities and Investments Commission Act 2001 (Cth) ss 12BAA, 12 BAB, 12DA, 12DB

Corporations Act 2001 (Cth) ss 708, 761G(4), 761G(7), 944A, 946A

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In the matter of Global Mortgage Equity Corporation Pty Limited [2013] NSWSC 1586

CORPORATIONS – share capital – shares – valuations -where orders made by Court of Appeal provide for a valuation to be undertaken by reference to the market value of the whole share capital of the company – where conflicting expert valuation evidence – where expert evidence differed on the application of differing methodologies – whether earnings-based valuation or valuation based on unadjusted balance sheet should be applied. Corporations Act 2001 (Cth) ss 95A, 296, 307

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Crosby & Browning v Narellan Pools Fraser Coast [2013] QCAT 509

Swimming pool defects – liability of franchisor and franchisee – damages or replacement – breach of contract – breach of statutory obligations – limitation periods – ongoing structural warranty – liability of pool manufacturer – measure of damages

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MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607

CORPORATIONS – unregistered managed investment scheme – no prospectus – information memorandum offering investment only to limited classes of investors – representations made by investor – funds loaned to invest in scheme – whether defendant a “professional investor” – meaning of “control” – Corporations Act 2001 (Cth), ss 9, 708(11) (as enacted in the Financial Services Reform Act 2001 (Cth)).

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Contact Mills Oakley


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T: +61 2 3228 0442

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