In February 2014 the ANZ bank appointed receivers to one of its mining services customers, the Forge Group. About $300 million was owed to the ANZ and some asset insurers, substantially in connection with leased equipment which had been financed by the bank and the insurers. The Forge group is now in liquidation.
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A possible short-term consequence of the Commonwealth government’s new Personal Property Securities Act (PPSA) will be to cause small business suppliers relying on retention-of-title (ROT) clauses as security for payment to lose out to big banks in any contest for money left over by a customer in financial distress. This is potentially the effect of the new law which commenced on 30th January 2012.
11 Sep 2015
A recent case in the NSW Supreme Court inadvertently highlighted the kind of contractual provision which is likely to fall foul of the forthcoming national laws dealing with unfair terms in business-to-business (B2B) contracts.
17 Jul 2015
Early in 2016, new Australia-wide laws for business-to- business (B2B) contracts will be introduced which will render ineffective terms in those contracts which are defined as “unfair”. This change in the law will vastly expand the scope for small business customers to vary, and possibly even exit, contracts with other businesses, whether small or large.
16 Jul 2015
A superannuation fund cannot be used to facilitate estate planning. The sole purpose test, with the prescribed Superannuation Industry (Supervision) Act 1993 (Cth) ("SISA") investment restrictions, ensures the retirement income objective is paramount. Leaving your superannuation death benefits or control of your super fund to your spouse or children in your will, generally will not be effective in law. One needs to look to the terms of the superannuation fund deed to plan how best to hand over the trustee role in the event of your incapacity and/or death and how to deal with death benefits.
13 May 2015
The contentious issue of access to privately owned land by exploration permit holders has been the subject of a recent review in New South Wales. The State Government engaged Bret Walker SC to conduct a review of the land access arbitration processes under the Mining Act 1992 (NSW) and the Petroleum (Onshore) Act 1991 (NSW) and make recommendations in relation to 13 specific questions about the effectiveness of current arrangements. At present, both the Mining Act 1992
23 Sep 2014
One of the most frequent questions I get as an employment lawyer is “restraints of trade are not really enforceable are they?” The legal position is that restraints of trade clauses in employment contracts are void, unless reasonable, and operate to protect a legitimate business interest. Historically this was interpreted very narrowly, and most restraint clauses were not enforced by the Courts. However, that is not the case today.
18 Aug 2014
The Fair Work Act’s new anti-bullying regime has now been in operation for just over 4 months. It was feared that there would be a deluge of claims to the Fair Work Commission (“Commission”), however this has not been the case. In the first 3 months of operation, there have been only 151 applications. Does this mean the jurisdiction has no teeth and is not as useful as initially anticipated in preventing bullying in the workplace?
30 May 2014
In a recent decision concerning the relationship between mineral leases in Western Australia and native title rights and interests, the High Court overturned an earlier decision of the Full Federal Court. The High Court held that “inconsistency” between native title and non-native title rights and interests is determined by the interests granted not the interests exercised, and extinguishment occurs at the time of the grant of the non-native title interest. This decision provides greater certainty for parties involved in native title proceedings.
30 May 2014
An appointment without recouping your costs, expenses and remuneration – the terror of a liquidator without the benefit of a statutory indemnity. Thankfully the High Court in Stewart v. Atco Controls Pty Ltd (In Liquidation)  HCA 15 has recently affirmed the principles in Re Universal Co Ltd (In Liq) (1933) 48 CLR 171 that a liquidator’s equitable lien reigns supreme in circumstances where the liquidator’s work has created a fund from which the secured creditor will derive a benefit.
28 May 2014