Year in Review - Australia Law in 2016
Unscrupulous advisors, unconscionably preying on desperate directors driven by the fear of losing everything, have created a boom in illegal phoenix activity. The below article, originally published on the McCullough Robertson white collar crime blog, Collared, sheds some light on the illegal phoenix, the gravity of the problem in Australia and considers what is being done to monitor and control the issue.
Last month former Kleenmaid director Bradley Young not so valiantly marched into the history books when found guilty of 17 charges of insolvent trading and one count of fraud after one of the longest criminal trials ever held in Queensland. This followed fellow director, Gary Armstrong, pleading guilty to two counts of insolvent trading and one count of fraud.
FI and D&O Since our last update, there have been significant developments in the FI and D&O landscape. November saw the first ever UK deferred prosecution agreement (DPA) announced between the SFO and Standard Bank. The DPA process has been available but unused since 2014 so the judgment and the SFO’s comments thereafter provided some much needed guidance on what the process involved. Significantly, weight was placed on Standard Bank’s early self-reporting and cooperation.
Legislation and proposed legislation
Government consults on proposals for technology neutrality in the distribution of company meeting communications
The Government has proposed a technology neutral mode of distributing company meeting notices and materials which aims to facilitate innovation and reduce economic and time costs for companies, while maintaining an appropriate level of shareholder engagement.
A party to arbitration or court proceedings in Australia can obtain a freezing order in advance of obtaining a domestic court judgment or arbitration award, in prescribed circumstances. In PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015]1 the High Court of Australia has confirmed that Australian courts have the same power to grant freezing orders prior to a judgment or award being obtained in respect of proceedings commenced outside of Australia, provided that judgment or award would be enforceable in Australia.
Impact of Apportionment
The High Court decision in Hunt & Hunt v. Mitchell Morgan Nominees Pty Ltd ((2013) HCA 10) highlights the impact of proportionate liability where it applies. In that case the High Court apportioned 87.5% of the liability to bankrupt fraudsters with only 12.5% of the liability being apportioned to the solicitors who had failed to protect the plaintiff from the fraud. Without the impact of apportionment Hunt & Hunt would have been liable severally for 100% of the loss.
The banking reform package marks an important step toward the completion of the European post-crisis regulatory reforms
REGULATORY & GOVERNMENTAL AFFAIRS Noerr EUROPANEWS Issue 32/2018 08 – 12 October 2018 Content LAW ___________________________________________________________________________________________ 1 POLITICS/GENERAL _______________________________________________________________________________ 2 DECISIONS ______________________________________________________________________________________ 3 FROM THE OJEU _________________________________________________________________________________ 3 BRUSSELS INTERN ______________________________________________
FINANCIAL REGULATORY DEVELOPMENTS FOCUS JUNE 7, 2018 ISSUE 22 In this week’s newsletter, we provide a snapshot of the principal U.S., European and global financial regulatory developments of interest to banks, investment firms, broker-dealers, market infrastructure providers, asset managers and corporates. Click here if you wish to access our Practice Group/Industry website. IN THIS ISSUE Bank Prudential Regulation & Regulatory Capital ..............................................................................................