Legal updates

On 24 February 2017, the Australian Competition and Consumer Commission (ACCC) announced its Enforcement and Compliance Policy for 2017. 

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.

Our final quarter saw a number of significant developments for the Dispute Resolution team.

The first round of amendments under the much anticipated Insolvency Law Reform Act 2016 (Cth) are slated to commence on 1 March 2017.

The New South Wales Court of Appeal, in a decision released on 6 February 2017,1 has confirmed that the common law meaning of what is, or is not, a fixture applies under the Personal Property Securities Act 2009 (Cth) (PPSA).

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.

Liquidators can rest assured that courts are reluctant to interfere in their commercial judgments or permit liquidators to be personally exposed to mandatory examinations under s596A Corporations Act 2001 (Cth) (Act).

The recent decision of Brereton J of the Supreme Court of New South Wales in Re OneSteel Manufacturing Pty Ltd (administrators appointed) [2017] NSWSC 21 has clarified the circumstances in which a registration on the Personal Property Securities Register (PPSR) will be ineffective and the consequences that can flow from this.

It is common for companies in distress to undertake a sales process of assets to alleviate cash flow or debt repayment issues. Often this course of action is the last resort after all other lines of credit have been exhausted or creditors have stopped providing extended terms of trade. Companies should not take such decisions lightly, especially if the sale will impact the underlying business or forecasts.  However, ultimately creditors’ demands and survival instincts result in action being taken (often too late and to the detriment of the company).

Companies in distress often undertake a sale of assets to alleviate cash flow or debt repayment issues when other lines of credit or sources of funds have been exhausted. Such decisions are not taken lightly, especially as the disposal of assets is likely to detrimentally impact the underlying business or forecasts.  Ultimately creditors’ demands and survival instincts will result in action being taken. However, it is often too late and to the detriment of the business.

Can liquidators disclose legal advice to creditors without losing privilege? Common interest privilege allows privileged information to be shared with a third party, who has a particular common interest, without it being waived. Liquidators and creditors have been found to have a requisite common interest.

On 8 December 2016, the Federal Court found that Woolworths did not engage in “unconscionable conduct” in contravention of the Australian Consumer Law by implementing its “Mind the Gap” scheme (Scheme). Under the Scheme, Woolworths sought payments from certain suppliers based upon whether they had achieved certain performance parameters adopted by Woolworths.