Corporate & Commercial Fortnightly Update – 24 September 2013

September, 2013

In the media

ACCC to not oppose Perpetual’s proposed acquisition of The Trust Company

The ACCC will not oppose the proposed acquisition of The Trust Company Limited by Perpetual Limited. In reaching this position, and  has accepted a court enforceable undertaking from Perpetual to divest The Trust Company’s existing ownership of a 13.4 per cent shareholding in competitor Equity Trustees Limited (19 September 2013)

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ASX does some spring cleaning: suspended companies to be delisted after three years

In a spring cleaning move by the ASX, companies which have been suspended from trading for more than three years could be automatically delisted. The proposed cut-off date is an initiative designed to stop shareholders and businesses being “left in limbo” (13 September 2013)

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In practice and courts

CAMAC: Regulation of crowd sourced equity funding:  discussion paper

The Corporations and Markets Advisory Committee (CAMAC) has released a discussion paper Crowd sourced equity funding.  The CAMAC discussion paper contains options for reform in relation to crowd sourced equity funding (CSEF) in Australia. CAMAC invites written submissions on any aspect of this review by Friday 29 November 2013. It will also conduct Roundtable consultation with respondents.


Tomasetti v Brailey [2013] NSWSC 1282

TRADE AND COMMERCE – consumer protection – misleading or deceptive conduct – recommendation by financial adviser of investments in agricultural managed investment schemes – implicit representations by financial adviser that investments were suitable for the investor’s personal circumstances – investments obviously not suitable for particular investor – reliance by investor upon advice – schemes ultimately failed – reliance upon advice causative of loss

Civil Procedure Act 2005 (NSW);  Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth)

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Suh & Ors v Cho & Ors [2013] VSC 491

CORPORATIONS – Statutory derivative action – Application for leave under Corporations Act 2001 (Cth) ss 236, 237 by member of deadlocked company to bring proceedings on behalf of the company against other member and director – Whether the five criterion in s 237(2) are established – Whether leave may be granted nunc pro tunc – Leave granted.

PRACTICE AND PROCEDURE – Discovery – Order for defendant co-director and public officer of company to authorise release of financial information by the Australian Taxation Office – s 55 Civil Procedure Act 2010 – Application granted.

PRACTICE AND PROCEDURE – Application to join third party – Whether cause of action disclosed – No cause of action disclosed – Leave refused.

PRACTICE AND PROCEDURE – Application by sole director and shareholder of company to appear and represent the company before the court generally– Leave given from time in interlocutory applications – Rules and practice applicable – Whether appropriate to grant leave generally – Leave refused.

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Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liq) [2013] VSC 482

FRAUD – Whether documents fraudulently concocted and backdated with a view to prejudicing bankrupt’s creditors – Evidence Act 2008 (Vic) s 140 – Nom v Director of Public Prosecutions & Ors [2012] VSCA 198, [113]-[124] – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449-50.

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Contact Mills Oakley


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Patrick Thaung | Partner
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