ASIC appeals Westpac’s success in the responsible consumer lending test case

In Australian Securities and Investments Commission v Westpac Banking Corporation (Liability Trial) [2019] FCA 1244, the Australian Securities and Investments Commission (ASIC) has brought a ‘test case’ considering alleged breaches of responsible lending obligations against Westpac Banking Corporation (Westpac). In particular, ASIC alleged Westpac breached the National Consumer Credit Protection Act 2009 (Cth) (the Act) through the use of its […]

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Lender’s minor omissions have major impact in summary judgment application

In Secure Funding v West [2017] QDC 169, the District Court of Queensland provides a helpful reminder of the importance of complying with contractual and legislative notice requirements.  As this case demonstrates, it is important for lenders to be able to demonstrate service of default notices so as to avoid minor omissions which can be costly.   […]

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Marshalling – what is it and how can it help a second registered mortgagee?

Marshalling is an equitable doctrine designed to protect second registered mortgagees from not being paid because of the arbitrary or capricious realisation of a security property by a prior mortgagee. In certain circumstances, a second registered mortgagee may be able to access surplus proceeds of sale from a property which it did not hold a mortgage […]

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Service of a creditor’s statutory demand – the importance of serving at the registered office maintained by ASIC

The recent decision of Mills Oakley v Asset HQ Australia Pty Ltd [2019] VSC 98 highlights the need for strict compliance when serving a creditor’s statutory demand on the registered office of a company. The Court considered whether a creditor’s statutory demand, with an error in the registered address of the company, was served in accordance with […]

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Liquidator’s application to obtain greater role in managed investment scheme winding up

In LM Investment Management Limited v Whyte [2019] QSC 233, the Supreme Court of Queensland considered an application by a Liquidator to: replace the court-appointed Receiver in the winding up of a managed investment scheme as well as for a complex remuneration and costs regime to be put in place; and to access the scheme property in […]

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Liquidator’s remuneration from trust assets – the next instalment

In LM Investment Management Limited & Anor Whyte [2019] QSC 245, the Supreme Court of Queensland considered an application by the Liquidator of LM Investment Management Limited (LM), for payment of some or all of his remuneration from trust property. The trust property comprised by a number of registered investment schemes, including the LM First Mortgage Income […]

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Send it to the right person: the importance of accurate notices terminating options

In JPA Finance Pty Ltd v Gordon Nominees Pty Ltd,[1] the Supreme Court of Victoria held that a notice purportedly terminating an option to purchase 20 units in a trust for $2.3M was invalid. This was because it was not addressed in accordance with the contract. Instead of being addressed to the company care of its lawyers, […]

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When privileged documents are stolen and disseminated: an analysis of the High Court’s decision in Glencore

In Glencore International AG v Commissioner of Taxation [2019] HCA 26, the High Court considered whether Glencore could restrain the Commissioner of Taxation from making use of certain privileged documents.  Interestingly, the privileged documents in question were stolen as part of a cyberattack from Glencore’s solicitors and disseminated amongst the “Paradise Papers”.   Background Solicitors acting for the […]

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Involved or not involved? That is the question for partners.

It is well established that the privilege against self-incrimination and privilege from exposure to civil penalties can be claimed by natural persons and are not available to corporations. However, the position is not yet settled insofar as it relates to partnerships. More specifically, whether all partners can claim the privileges or whether it can only […]

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Bellamy’s cry for “cost capping” in competing McKay and Basil class actions dismissed by the Full Court of the Federal Court

On 23 August 2019, the Full Court of the Federal Court in Bellamy’s Australia Limited v Basil [2019] FCAFC 147 (Bellamy’s) unanimously dismissed the applicant’s application for leave to appeal “costs capping” orders, initially rejected by the primary judge at first instance. Bellamy’s Australia Limited (BAL) is the respondent to two class actions: McKay Super […]

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Settling a class action – common fund orders and legal costs

On 30 July 2019, Justice Parker handed down a decision in the Supreme Court of NSW class action Tredrea v KPMG Financial Advisory Services (Australia) Pty Ltd (No 3) [2019] (Tredrea) refusing both to grant a Common Fund Order (sought by the funder at a rate of 30% of the gross settlement reached) or approve the […]

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Federal Court finds ticket reseller engaged in misleading and deceptive conduct

In the recent case of ACCC v Viagogo AG, the Federal Court considered whether Viagogo engaged in misleading and deceptive conduct by acting in a way liable to mislead consumers when reselling event tickets in breach of the Australian Consumer Law. This decision is a reminder to businesses to accurately describe the nature of the products or services […]

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