The Consumer Credit (Queensland) and Other Acts Amendment Bill was passed by the Queensland Parliament on 1 May 2008.
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Posted 5th May 2008 by David Jacobson in Financial Services
May 5, 2008
Queensland consumer credit interest rate capped
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Posted 5th May 2008 by David Jacobson in Financial Services
Competing rights on insolvency: share lending agreement
In Beconwood Securities Pty Ltd v Australia
and New Zealand Banking Group Limited [2008] FCA 594 the Federal Court had to decide on the competing rights of a lender (Beconwood) and a borrower (Green Frog, a part of the now insolvent Opes Prime Stockbroking group) under a Securities Lending Agreement. The lender had loaned its shares in return for a loan from the borrower Opes Prime. Opes Prime had obtained its funds from ANZ on the security of the shares it borrowed from Beconwood; ANZ wanted to sell those shares upon default by Opes Prime. ANZ could not sell the shares unless they had been transferred by Beconwood to Opes Prime so that it had the right to mortgage them to ANZ.
The lender Beconwood wanted its shares back upon payment of its debt to Green Frog. Otherwise its shares would be pooled with all the other Green Frog assets and it would become a mere creditor and lose its rights over those specific shares.
After a detailed analysis of the Agreement, including reference to US cases, the Court rejected the Lender’s (Beconwood’s) claim over the shares. The Court decided that Beconwood had legally transferred the shares to Green Frog (despite use of the lender/borrower terms).
The decision did not deal with claims over representations made to Beconwood about the effect of the agreement.
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Posted 5th May 2008 by David Jacobson in Financial Services
May 2, 2008
April 2008 podcast
In this month’s podcast (click here to listen) I discuss 2 topics:
- Directors’ duties in times of economic uncertainty (see also section 180(2) Corporations Act)
- Nikolich’s case and the effect of HR policies
The podcast goes for 9 mins, 23 seconds and is 8.62mb.
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Posted 2nd May 2008 by David Jacobson in Business Planning, Corporate Governance, Corporations Act
Trade Practices Act amendments
Treasury has released the Exposure Draft (Misuse of Market Power and related Provisions) to implement the changes announced by the Assistant Treasurer and Minister for Competition Policy and Consumer Affairs, the Hon Chris Bowen MP to section 46 of the Trade Practices Act 1974 in order to improve its operation in relation to anti-competitive behaviour.
The measures include:
- providing that recoupment is not required to be proved when alleging predatory pricing;
- amending section 46 to clarify the meaning of ‘take advantage’ in that section;
- amending section 46(1AA) of the Act to remove any ambiguity in that
section and so as to make its operation consistent with the remainder
of section 46 by targeting market power; - access to less expensive justice for small and medium enterprises
by extending the jurisdiction of the Federal Magistrates Court to allow
it to hear matters arising under section 46; - removing the monetary threshold that currently applies to the
claims of unconscionable conduct in business transactions under section
51AC; - providing that the ACCC may utilise its powers under section 155 until it commences proceedings; and
- requiring that one of the deputy chair positions at the ACCC has a small business focus.
The Assistant Treasurer has written to the States and Territories seeking their approval for the proposed amendments.
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Posted 2nd May 2008 by David Jacobson in Trade Practices
May 1, 2008
AML record-keeping rule
New anti-money The The Explanatory Statement explains that: "These
laundering and counter-terrorism financing rules have been made to
update the record keeping obligations of reporting entities.
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment
Instrument 2008 (No. 1) set out the conditions under which a
reporting entity may rely on the record of an applicable customer
identification procedure (ACIP) carried out by another reporting entity.
AML/CTF Rules allow the second reporting entity to rely on the record
of the ACIP which has been carried out by the first reporting entity,
provided that the second reporting entity has access to that record in
accordance with an agreement which is in place between the two
reporting entities for the management of records. However, the second
reporting entity may only rely on this agreement if it has first
assessed that it is appropriate to rely on the first reporting entity’s
ACIP having regard to the money laundering/terrorism financing risk
relevant to the designated service which the second reporting entity is
providing. That is, if the first reporting entity’s risk is different
to the second reporting entity’s, it may not be appropriate to rely on
the first reporting entity’s ACIP." Print This Post
Posted 1st May 2008
by David Jacobson
in Anti-money laundering
APRA’s Ratings and Supervisory Systems
APRA has released details of its systems for monitoring entities regulated by it: the Probability and Impact Rating System (PAIRS) and the Supervisory Oversight and Response System (SOARS) .
The Probability and Impact Rating System (PAIRS)(pdf) is APRA s
risk assessment model. PAIRS was launched in October 2002. An enhanced version
of the original PAIRS model was introduced in early 2008.
APRA s Supervisory Oversight and Response System (SOARS) (pdf) was
introduced in October 2002. SOARS is used to determine how supervisory concerns
based on risk assessments made under APRA s Probability and Impact Rating
System (PAIRS) should be acted upon. It is intended to ensure that supervisory
interventions are targeted and timely. All APRA-regulated entities that are
subject to PAIRS assessment are assigned a SOARS stance.
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Posted 1st May 2008 by David Jacobson in Financial Services