Corporate & Commercial Fortnightly Update – 7 November 2013

November, 2013

In the media

ACCC quarterly report puts spotlight on statutory information gathering powers

The ACCC has published its September 2013 quarterly report, ACCCount. In the last quarter, the ACCC was involved in 10 proceedings relating to competition enforcement across industries as diverse as air freight, manufacturing components and financial services, which are still underway (04 November 2013)

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ASIC launches defence to Senate inquiry

The corporate regulator has released its major 200-page submission to the Senate inquiry into the performance of ASIC. As part of its defence ASIC pointed to the fact that Australia’s financial system performed better than nearly every other jurisdiction in the world during the global financial crisis (31 October 2013)

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ATO investigates $65m GST fraud in gold bullion trade – Australian Federal Police

The ATO is investigating companies in the gold bullion industry suspected of GST fraud totalling more than $65 million. The ATO, AFP and Australian Crime Commission executed search warrants on premises associated with the companies operating in the gold bullion and precious metals industries (30 October 2013)

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ASIC concerns result in changes to online advertising by Insure 247

Companies need to make it very clear to consumers whether their websites contain true product comparisons or are simply promoting their own product. This follows an announcement from the ASIC that Insure 247 Pty Ltd (Insure 247) has made changes to its online insurance websites following ASIC concerns they contained misleading or deceptive advertising (28 October 2013)

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Published – articles, papers, reports

Small Business Access to Finance: Year to March 2013 / Australian Bankers’ Association (ABA) and Council of Small Business of Australia (COSBOA)

Small businesses who expect their revenues to increase are more concerned about access to finance, whether or not they currently have a loan.  A little less than half of the small businesses surveyed expect their revenue to grow; and of these, 14.5%, are concerned about access to finance (released 30 October 2013)

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Annual Report 2012-2013 / Australian securities & Investments Commission (ASIC)

The annual report for the 2012-13 financial year was tabled in the Australian Parliament (30 October 2013)

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Why business ethics matter to your bottom line / Institute of Chartered Accountants Australia

The paper looks at the need for businesses to build institutional integrity into an organisation to support employees in making ethical choices. Applied business ethics in Australia is not given the same amount of focus than some other parts of the world (October 2013)

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Reflecting on Australian franchise growth / Fiona Taylor

Looking back over the last decade of franchising in Australia the sector has experienced strong growth, with an average biennial growth rate of more than 10 per cent.  Apart from the slight contraction from 2008 to 2010 as a result of the global financial crisis, growth generally ranged between 14-15% biennially over the last decade (see infographic) (30 October 2013)

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Cases

Li v Wu [2013] FCA 1067

CONTRACTS – misleading and deceptive conduct – breach of express and implied terms – equitable compensation – construction of contract – indemnity provisions – member loans – breach of fiduciary  duty  should not be permitted because of a failure by Mr Li to articulate in sufficient time the basis for the claim for compensation – Fair Trading Act 1992 (ACT)

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Willmott Forests Ltd (Receivers & Managers appointed) (in liquidation) v Primary Securities Ltd [2013] VSC 574

CORPORATIONS – Forestry managed investment scheme – Responsible entity replaced – Whether land on which scheme operates is scheme property – Not contribution of money’s worth to the scheme – Not property acquired with contributions or proceeds of contributions – Land not held on trust – Former responsible entity stands in the shoes of outgoing responsible entity – Rights of former responsible entity now rights of replacement responsible entity – Extent of forestry rights – Replacement responsible entity’s entitlement to those rights – Corporations Act 2001 (Cth) ss 9, 601FC, 601FS, 601FT.

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Geemaz Management Pty Ltd v Geelong Motors Pty Ltd [2013] VSC 571

CONTRACT – Terms of commercial agreement recorded in annotated email print out signed by the parties – Whether parties signing the email print out intended to conclude an enforceable bargain – car dealership franchises – Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd [2009] NSWCA 388; Ermogenous v Greek Orthodox Community (2002) 209 CLR 95; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Australian Communications Corp Pty Ltd v Coles Group Ltd [2011] VSC 490; and Ryldedar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603.

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Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2013] VSC 543

EQUITY – Fiduciaries – Director of family trust company arranged for the company to borrow money to make superannuation contributions to himself and family – Whether director breached fiduciary duties – Whether shareholders prospectively assented to transactions – Whether shareholders ratified transactions – Interests of beneficiaries of trust – Liability for knowing receipt – Whether sufficient knowledge – Liability for receipt of trust property as volunteer – Meaning of ‘volunteer’ – Whether superannuation fund provides valuable consideration in exchange for member or employer contributions – Cook v Benson [2003] HCA 36; (2003) 214 CLR 370 applied – Whether plaintiff has unclean hands – Director breached fiduciary duty but no liability since recipient company had insufficient knowledge and was not a volunteer.

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Contact Mills Oakley

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 2 3228 0442
E: tcox@millsoakley.com.au

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