Debt Finance

The PPSA is a fundamental overhaul of the existing regime for taking and granting security over personal property (excluding land). The changes will affect nearly all businesses, particularly manufacturers and wholesalers who commonly supply goods to customers on retention of title terms.


ACCC vs Metcash

On 30 November 2011, the full bench of the Federal Court dismissed the ACCC’s appeal against the primary judge’s ruling that the acquisition of Franklins by Metcash will not result in a substantial lessening of competition in contravention of section 50 of the CCA.

*As published in Keeping Good Companies, September 2011

Recent cases demonstrate that companies should immediately perform a comprehensive audit of trade practices compliance programs to ensure they are up to date, effectively implemented and well resourced.

On 6 June 2012, the new anti-competitive price signalling laws will come into effect. While the Government at this stage only intends to apply these laws to the banking sector, recently proposed regulations demonstrate that the process pursuant to which the new laws may be applied to other industries is uncertain and entirely discretionary.

This note examines what strategies are available to suppliers where a reduction in supply price is not commercially viable, and what to do when one of your customers’ heavy discounting results in your other customers threatening to switch supply unless they get lower prices from you or unless you stop supplying the discounting customer.

The common practice of courts endorsing negotiated settlements involving “agreed penalties” between private parties and prosecuting regulators was the subject of judicial criticism in the recent ASIC v Ingleby case.

A recent Federal Court decision highlights the ACCC’s readiness to heavily enforce mandatory safety standards, especially in circumstances where the safety of vulnerable consumers may be affected.

It is standard practice for a company to have clearly articulated policies about consumer refunds including the circumstances in which the company may seek to repair or replace defective products as an alternative to offering a refund. If, however, those policies do not comply with the strict requirements of the Australian Consumer Law (ACL), the recent decision in ACCC v Hewlett-Packard makes it abundantly clear that companies will face serious consequences.

The long-awaited decision of the Federal Court in ACCC v Cement Australia demonstrates that if you seek to “tie up” the market through contractual arrangements with your suppliers (or customers), you will run the risk of contravening competition laws.

In February 2014, the Productivity Commission’s (PC) final report to the Government on the National Access Regime under Part IIIA of the Competition and Consumer Act 2010 was released.

On 22 September 2014, the Harper Review Panel released its Draft Report of the “root and branch” review of Australia's competition laws and policy.

Corporate Governance

Directors pay the price for Prime Trust collapse

Late last year the Federal Court of Australia disqualified former directors of the failed Prime Retirement and Aged Care Property Trust (the Prime Trust) from managing corporations and imposed pecuniary penalties on the directors.


Are you a director of a company? Did you know that the ACCC can ask the Court to ban you from managing any company if you breach the Australian Consumer Law?

In 2014, the majority of the High Court in Barbaro v The Queen (2014) 305 ALR 323 (Barbaro) held that the practice of prosecutors making submissions to a sentencing judge in criminal proceedings as to the available range of sentences was improper because it represented an opinion rather than evidence.

Dispute Resolution

On 24 September 2015, the Supreme Court of Victoria in Australian Property Custodian Holdings Ltd (in liq) v Pitcher Partners [2015] VSC 513 (“APCH”) handed down a decision in relation to security for costs (in which the author’s firm, Johnson Winter & Slattery, acted for the successful respondent liquidator) which could significantly transform the way in which commercial litigation in Australia is funded and conducted.


Where employees commit fraud, breach their duties not to assist competitors or prospective competitors or breach their confidentiality obligations, the impact on the organisation can be critical. Employers can react to such situations irrationally. This may lead to destruction of crucial evidence that may support any allegations against the perpetrator and could leave employers open to claims against them.


On 1 July 2016 the Australian Competition Tribunal authorised Sea Swift Pty Ltd’s acquisition of the marine freight business of Toll Marine Logistics Australia in the Northern Territory and far north Queensland.


There has been a raft of reforms to Australia’s foreign investment framework over the last 12 months. The Commonwealth Government has introduced legislation which is intended to bolster the integrity of the foreign investment framework.


The Full Bench of the Fair Work Commission has handed down its decision on its review of modern award penalty rates in the hospitality and retail sectors, reducing Sunday and public holiday rates in a number of awards.


What you need to know: Knowledge, beliefs, opinions or state of minds of persons closely and relevantly connected to a company can be attributed to the company; One cannot simply aggregate the knowledge held by different officers or employees of a company, who are individually unaware of fraud or any wrongdoing, to create a notional person with a dishonest intent so as to attribute it to the company, however, in certain circumstances, knowledge of fraud by employees may be aggregated to determine culpability of a company where there is a duty and opportunity to communicate it to the other.

On 4 August 2017, the Chairman of the ACCC, Mr Rod Sims, confirmed a major shift in ACCC policy towards “more intensive information-gathering” when it is reviewing contentious merger proposals. The new approach in contentious merger cases will include more extensive informal voluntary information requests and an increase in formal mandatory information requests (s155 Notices). As a consequence, the duration of informal clearance reviews of contentious mergers will be prolonged.

In September 2017, the Federal Court found that supermarket chain, Aldi, had engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law by using the word “natural” in relation to its haircare product line. 

Debt Finance

Mr Goodridge has lodged an application for special leave to appeal to the High Court in respect of the Full Federal Court’s decision in Leveraged Equities Limited v Goodridge.


Infringement Notices

The ACCC has the power to use infringement, substantiation and public warning notices in carrying out its enforcement activities, and has embraced infringement notices to resolve minor contraventions of the Australian Consumer Law. 

The Government's carbon pricing scheme commences on 1 July 2012. This article outlines the competition and consumer law compliance implications of the "carbon tax" that are relevant to virtually every business.

The Australian Competition and Consumer Commission (ACCC) took issue with representations made by home builder Metricon Homes Qld Pty Ltd (Metricon) in advertisements to consumers. While the case doesn’t reflect new law, it is a reminder to home builders and developers not to push the envelope, even in a difficult market.

As foreshadowed by Lord Acton, the battle of people versus the banks is well upon us. And it seems the good money is with the people.

Three recent ACCC merger informal clearance decisions reinforce the ACCC’s view that 3:2 mergers will be presumed to be anti-competitive unless the parties can clearly demonstrate that structural or behavioural outcomes as a result of the transaction would not substantially lessen competition in any market.

The new government has announced that it will conduct a "root and branch review" of Australia's competition laws within the first 100 days of taking office. A "root and branch" review will examine every aspect of competition law on a line by line basis.

Conflicting decisions on the nature of multi-channel distribution models – the ANZ and Flight Centre cases

Two recent Federal Court decisions provide contradictory and irreconcilable conclusions as to whether a supplier that supplies goods or services direct to customers is “in competition with” its own distributors or agents supplying the same goods and service to customers.

In a decision handed down on 17 October 2014, the High Court refused to grant special leave to appeal in respect of a challenge to the legality of the rule prohibiting the use of artificial insemination (AI) in the production of thoroughbred horses in Australia.

The Australian Securities and Investments Commission (ASIC) has recently updated its guidance and expanded the scope of its associated class order relief relating to offers of securities under employee incentive schemes.

In this article we outline our preliminary views on the key competition law and policy recommendations made by the Harper Review on Tuesday, March 31 2015.  

Dispute Resolution

On 14 July 2015, the South Australian District Court in Matthews v The Tap Inn Pty Ltd [2015] SADC 108 handed down a decision whose underlying reasoning could, if applied by superior courts around Australia, broaden the scope for liquidators to pursue unfair preference claims against secured creditors.


Recent decisions of the Full Federal Court and of the NSW Court of Appeal are a timely reminder for employers about the risk of employment policies and other representations giving rise to breach of employment contract claims and damages awards for such breaches.


From 1 September 2016, the ACCC will begin enforcing penalties on large merchants who charge excessive payment surcharges on credit, debit and prepaid card payments.


The Fair Work Commission has ordered the CFMEU to stop organising covert unprotected industrial action at AGL’s Loy Yang site in Traralgon.  The order, made under section 418 of the Fair Work Act 2009, prohibits the CFMEU from organising unprotected action in the form of overtime bans and illegitimate sick leave absences.


The High Court’s decision is the final (Australian) chapter in the long running Air Cargo Cartel matter. Between 2008 and 2010, the Australian Competition and Consumer Commission (ACCC) issued proceedings against many international airlines alleging price-fixing and other anti-competitive conduct in relation to certain surcharges on international air cargo services flying to Australia. Most airlines settled with the ACCC, with the Federal Court imposing penalties totalling $98.5 million.

On 1 July 2017, the value of a penalty unit for the commission of an offence by a corporation or individual increased from $180 to $210. This means higher penalties now apply for various breaches (or alleged breaches) of the Competition and Consumer Act 2010 (CCA) and the Australian Consumer Law (Schedule 2 of the CCA) (ACL).

Debt Finance

Published in the Australian Banking & Finance Law Bulletin 2011, 26.8

The recent decision of the full bench of the Federal Court in Leveraged Equities Ltd v Goodridge has unanimously overturned the contentious first instance decision of Rares J and, in doing so, has restored clarity to the legal principles governing assignment and novation of contracts.


Price signalling

On 24 November 2011, the Senate passed the Competition and Consumer Amendment Bill (No. 1) 2011 which introduces new prohibitions against disclosures of pricing and other competitively sensitive information.

ACCC announces year's priorities

The Chairman of the Australian Competition and Consumer Commission, Rod Sims, has recently announced the Commission’s key goals for 2012 and outlined the five 'high level objectives' for 2012.

On 14 September 2012, the High Court delivered its much anticipated landmark decision in relation to the Pilbara iron ore railways access matters. In doing so, it upheld the Full Federal Court’s decision to overturn 15 years of regulatory and judicial precedent relating to declaration criterion (b) of Part IIIA of the Competition and Consumer Act 2010.

On 25 October 2012, the Productivity Commission (PC) was asked to review the National Access Regime in Part IIIA of the Competition and Consumer Act 2010 to assess its role and efficacy and propose ways of improving its operation.

The position in Australia and the EU

The ACCC’s Immunity Policy is a crucial tool for detecting illegal cartel conduct by providing incentives for cartel participants to ‘blow the whistle’ and cooperate with the ACCC.

The Government has now released draft terms of reference for its "root and branch" review of Australia's competition laws. The terms of reference are extremely broad, focus on protecting small business, and may result in significant changes to every aspect of the Australian competition law landscape.

On 30 January 2015, ASX released its revised Listing Rules Guidance Note 27 Trading Policies (Guidance Note) to assist listed entities to comply with their obligations under the Listing Rules in relation to trading policies.

Dispute Resolution

Justice Wigney recently handed down a decision on a common fund application in the Allco Finance Group class action. The decision focused on the Court’s ability and discretion to make an order permitting a litigation funder to in effect fund the entire class of an open class representative proceeding, even where members of the group had not entered into any funding agreement with it.


On 18 July 2016, Nippon Yusen Kabushiki Kaisha (NYK), a Japanese global shipping giant, pleaded guilty to criminal cartel conduct charges laid against it by the Commonwealth Director of Public Prosecutions (CDPP), on a reference by the Australian Competition and Consumer Commissions (ACCC),in the Federal Court of Australia.