Acumen September 2017

acumen: noun – quickness of perception; keen insight.

A range of legal issues from July to September 2017 relevant to corporate counsel and senior executives, written by our senior practitioners.

 

Competition

• ACCC review of contentious mergers: greater scrutiny, longer review periods
  The Chairman of the ACCC has confirmed a major shift in ACCC policy towards “more intensive information-gathering” when it is reviewing contentious merger proposals; as a consequence, the duration of informal clearance reviews of contentious mergers will be prolonged.
• Higher penalties for competition and consumer law breaches
  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 and the Australian Consumer Law.
• Protecting small business: the ACCC gets tough on unfair terms
  In recent weeks, the ACCC has commenced its first two cases under the unfair terms (small business contracts) regime against JJ Richards & Sons Pty Ltd (JJ Richards) and Servcorp Ltd and two of its subsidiaries (Servcorp).
• The Misuse of Market Power Bill passes Parliament
  The Federal Parliament has taken an important step toward implementing a key recommendation of the ‘Harper’ Competition Policy Review. What is the correct interpretation of declaration criterion (a) under Part IIIA?
• The recent decision upholding the declaration of the Port of Newcastle shipping channel
  On 16 August 2017, the Full Federal Court rejected an application for judicial review in respect of the Australian Competition Tribunal’s (Tribunal) decision to declare shipping channel services provided by the Port of Newcastle under Part IIIA of the Competition and Consumer Act (Part IIIA).
• Australia’s first criminal cartel conviction: NYK fined $25 million
  On 3 August 2017 Nippon Yusen Kabushiki Kaisha (NYK) was fined $25 million in the first ever criminal cartel prosecution commenced in Australia. The decision of the Federal Court in this case outlines how the Court will determine penalties for criminal cartel conduct including discounts available for early cooperation and the little assistance offered by penalties in civil cartel cases.
   

Insolvency

• To adjourn, or not to adjourn: applications by administrators to adjourn winding up applications
  Administrators looking to adjourn an application to wind up a company which is under administration pursuant to s 440A(2) of the Corporations Act 2001 (Cth) (Act) must satisfy the Court that the continuation of the administration is in the best interests of creditors.
• Set-off rights miss the mark!
  A recent court decision is a timely reminder of the limitations that can affect a person’s ability to rely on set-off rights when a debtor or contract counterparty becomes insolvent.
• Two steps forward, one step back
  A Queensland Supreme Court decision has again confirmed the utility of a Deed of Company Arrangement in respect of director appointments and members’ rights as part of a restructure.
• Striking the right balance
  In the recent decision of the Federal Court, JWS was successful in encouraging the Court to strike a balance between the legislative intention that an administration under Part 5.3A of the Corporations Act 2001 (Cth) (Act) be conducted with relative speed, and the overall objective of Part 5.3A to maximise the return for creditors and any return to shareholders.
• First hurdle cleared
  Members of the Senate have temporarily put aside considerations of postal votes, plebiscites and dual citizens to approve the safe harbour and related laws.
• Safe harbour – now for the nitty gritty
  The innocuously named Treasury Laws Amendment (2017 Enterprise Incentives No 2) Bill 2017 (Cth) (the Bill) makes only a small number of amendments to the Corporations Act 2001 (Cth) insofar as the safe harbour reforms of Australia’s insolvent trading law are concerned.
• Still holding on
  The recent appeal judgment in Mighty River International Ltd v Hughes [2017] WASCA 152 has confirmed the validity of ‘holding’ deeds of company arrangement, or ‘Holding DOCAs’ under the Corporations Act 2001 (Cth) (the Act).
• Insolvency law reform – stay on enforcement of ipso facto clauses
  A brief overview of the reform relating to ipso facto clauses set out in the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 (Cth) (Bill), which will become the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) (new Act) when Royal Assent is received.
• The new safe harbour insolvency laws – basics for directors and commercial contracting
  The amendments to the Corporations Act to broaden the ‘safe harbours’ for directors on an insolvency were passed by Parliament on 12 September 2017 and are awaiting a date for commencement.

Corporate governance

• Key points for boards and activist shareholders from Perpetual’s loss to Brickworks and Soul Patts
  The Federal Court has released its judgment in favour of Brickworks Limited and Washington H. Soul Pattinson and Company Limited, in its proceedings with Perpetual.

Funds management

• Corporate Collective Investment Vehicles – initial consultations completed
  On 15 September 2017, the Department of Treasury and ASIC finalised initial consultations on the draft Corporate Collective Investment Vehicle Bill. Given the number and type of issues discussed in consultation sessions, further consultation appears necessary before the legislation is finalised.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).