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| Banking In Brief |
| Banking Services Alert - Term Deposits Redefined - 2 December 2011
An interesting interplay is going on at the present time between APRA and ASIC relating to how Term Deposits issued by authorised deposit taking institutions (ADIs) are treated.
The interplay illustrates how legislation and prudential standards can impact upon and shape the nature and features of retail banking products in the market place.
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| Banking in Brief - Issue 27 - 1 December 2011
Financiers Depositing Funds Directly with Suppliers Beware! Two recent court cases have highlighted the need for financiers, that are in the business of financing the purchase of chattels, to protect themselves from the risks associated with directly depositing funds into suppliers’ accounts (as opposed to borrowers’ accounts).
Reverse Mortgages - Further Enhancements. The Government foreshadowed that in Phase 2 of the Consumer Credit Law Reforms one of the first matters it would look at would be enhancement to the Regulation of Reverse Mortgages.
PPS Register: Government Indicates January 30 Commencement is Still Possible. The Federal Government has recently reported to a Senate Committee that a commencement date of 30 January 2012 for the personal property security reforms is still anticipated. However, a recent Federal Bill (Personal Property Securities Amendments (Registration Commencement) Bill 2011) if made law, will allow the Attorney-General to determine a new start date for the PPS register beyond February 2012.
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| Key Facts Sheets for Home Loans - Implications for Mortgage Managers - 25 November 2011
As from 1 January 2012 (current proposed start date) Credit Providers will have to give potential customers the ability to generate a Key Fact Sheet on their website.
The capacity to generate a Key Facts Sheet does not need to be present in all circumstances, only where “the credit provider” has a website that can be used by a consumer to apply for or make an enquiry about, one or more standard loans of the “credit provider”.
There is a separate obligation for a credit provider to provide a Key Facts Sheet for a loan on request.
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| Banking Alert - NSW Mortgagee & Witnessing Requirements - 21 October 2011
The NSW law changes requiring lenders to identify the person signing a mortgage and tightening the requirements for witnesses to identify the person signing a dealing in land started on 1 November 2011.
Unlike the Queensland identification form which provides evidence that the lender took steps to ensure compliance with the requirements of the law, identification forms signed by a witness do not assist Lender’s to comply with their identification obligations under the NSW laws. In the absence of fraud, the witness certificate merely provides a third party assurance that the person signing the mortgage is who they say they are.
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| Banking News Snippets - 14 October 2011
It seems that every day there are developments that affect the finance industry.
Some of the more interesting recent snippets of news include:
A draft bill to implement the Government’s Future of Financial Advice (FOFA) reforms
Management of early release superannuation
New disclosure obligations under the Financial Claims Scheme
Quoting of Australian Credit Licence Numbers
Deferral of commencement of the PPS reforms
Home Loan Key Fact Sheets
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| Banking Alert - Consumer Leases - Light touch regulations coming to an end - 30 August 2011
Consumer Leases traditionally have been regulated under the Credit Code by way of a less prescriptive regime than that which applies to loan contracts. Government has grappled over recent years with what should be the position going forward in connection with regulation and disclosure requirements for consumer leases.
The release of the proposed National Consumer Credit Protection Amendment (Enhancements) Bill 2011 will make it clear that going forward consumer leases will have the same type of disclosure requirements and regulatory requirements as loan contracts now do.
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| Banking Alert - New Credit Card Restrictions - 29 August 2011
From July 2012 lenders will need to comply with strict new guidelines concerning provision of information about key features of credit card products and over limit transactions.
These requirements are contained in the National Consumer Credit Protection Amendments (Home Loan and Credit Cards) Act 2011.
Federal Treasury is now seeking industry feedback on draft proposed regulations. These draft regulations will be particularly important in defining the scope and impact of the new legislation.
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| Banking Alert - NCCP Update - 5 August 2011
Further to our Banking Alert on 1 August 2011, the National Consumer Credit Protection Amendment Regulations 2011 (No. 4) have been released. They can be located on the ComLaw web site along with the Explanatory Statement.
The regulations were made on the 28 July 2011, with the amendments relating to credit guides to commence on 1 October 2011.
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| Banking Alert - Start Date for Credit Guides, Quotes & Proposals Deferrred - 1 August 2011
Federal Treasury announced today that:
The new National Consumer Credit Protection Amendment Regulations 2011 (No.4) were recently made which amend the National Consumer Credit Protection Regulations 2011 and clarify the disclosure obligations of lenders and brokers under the Credit Act. The enhanced disclosure obligations will commence on 1 October 2011. The Amendment Regulations also extend the transitional period for compliance from 1 August 2011 till 1 October 2011.
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| Banking Services Alert - ASIC Issues Further Guidance on Responsible Lending - 8 April 2011
On Thursday 31 March 2011 ASIC advised that it had updated it’s Regulatory Guide 209 “Credit Licensing: Responsible Lending Conduct” to give further guidance on Responsible Lending obligations.
The updates to Regulatory Guide 209 have most likely been prompted by numerous enquiries and confusion surrounding issues such as loans made to people approaching retirement age, refinancing loans in default and circumstances where temporary hardship may be suffered due to foreseeable circumstances. Additionally, there is always the thorny issue of family income being taken into account where the loan is being applied for in the name of one person.
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| Banking Alert - ASIC Update - 10 March 2011
FURTHER ASIC REVIEW OF EARLY TERMINATION FEES. Following release of the draft regulation on 15 February 2011 to prohibit all termination fees on new home loans entered into on or after 1 July 2011, ASIC has now foreshadowed that it is intending to undertake a further review of early termination fees in the residential loan market, following hot on the heels of publication of Regulatory Guide 220 dealing with early termination fees for residential loans.
ASIC CHANGE TO REGULATORY GUIDANCE ON INTERNAL DISPUTE RESOLUTION. Regulatory Guide 165 deals with Internal and External Dispute Resolution. Following lobbying from industry associations, ASIC have now broadened the scope of exemptions available to reduce the administrative and regulatory burdens on licensees when dealing with “complaints or disputes”.
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| Corporate & Business |
| Corporate & Business Alert - So, You Want to be a Director? What are the Dangers? - 12 August 2011
In a recent landmark decision of the Federal Court, executives and directors of troubled property group Centro were found to have breached the Corporations Act by signing off on financial reports that failed to disclose billions of dollars of short-term debt. ABC Learning founder Eddy Groves and fellow executive Martin Kemp are due to face trial in the new year accused of breaching the Corporations Act.
What do you need to beware of with respect to your duties as a Director or Executive of a Company?
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| Corporate & Business In Brief - November 2010
What is Unfair under the New Australian Consumer Law?
The aim of the new Australian Consumer Law is to provide a single, national law regarding consumer protection and fair trading to replace the myriad State, Territory and Commonwealth laws in this area. This article by Roslyn Diesner sets out the effect of the new laws and gives the test for determining what is unfair under the new Australian Consumer Law.
$2Million in Damages on Restraint of Trade. An effectively drafted restraint of trade clause in a share sale agreement resulted in damages awarded of over $2,000,000 in Orica Investments Ltd v William McCartney [2010] NSWSC 488. The Court's findings, an outline of how trade was breached and the assessment of damages are given in this article by Lisa Sylvester.
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| Corporate & Business In Brief - Issue 12 - March 2010
Superannuation update - The latest Government statistics regarding our ageing population raise some interesting reminders for all self employed people who either trade as individuals or control companies through their own or their Family Trust’s shareholdings. Often those businesses have been successful in paying monies into Self Managed Super Funds (SMSF). Every day we hear the question “how much money will I need in my old age and when do I retire?”
iiNet v Roadshow Films - In the recent Federal Court decision of Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] FCA 24, a total of 34 applicants including Roadshow films, Universal Studios, Paramount Pictures and Disney combined forces to bring proceedings against iiNET, a Perth-based ISP and in turn, brought about a landmark copyright decision.
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| Debt Recovery |
| News Alert - PPS Update - 12 May 2011
On 10 May 2011 the Senate passed the last Bill amending the Personal Property Securities Act 2010 and the Corporations Act 2001 under the PPS regime.
The Personal Property Securities (Corporations and Other Amendments) Bill 2011 was the final set of amendments to the Personal Property Securities Act (PPS Act) and consequential amendments prior to the Personal Property Securities (PPS) regime coming into effect later this year (1 October 2011).
The PPS Act, which was passed by the Federal Parliament in 2009, created one national law with one set of rules governing interests in property other than land that secure debts or other obligations, with the aim of simplifying over 70 Commonwealth, state and territory laws, and common law governing security interests in personal property. It replaces many registers of personal property security interests that complement these state and territory acts, with the one PPS Register.
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| Insolvency Alert - 1 July 2010
Creditor Petitions & Bankruptcy Notices - Changes to Minimum Debt
On 24 June 2010, the Federal Parliament passed amendments to the Bankruptcy Act 1966 changing the minimum debt amount prescribed by the Act for: A bankruptcy notice to be issued (Section 41); and A creditor's petition (Section 44).
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| News Alert - Personal Property Securities Register delays - 21 Sept 2011
The Personal Property Security Register was anticipated to commence in October 2011. The Attorney General’s Department have experienced issues with internal testing, and have announced further delays. It now seems almost certain that the register will not commence operation in October 2011 as previously foreshadowed.
We will keep you updated as to the progress of commencement.
MacGillivrays will be conducting a client seminar to assist with understanding the Act and the operation of the new register.
To register your interest in the seminar, please email marketing@macgillivrays.com.au.
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| Employment & Industrial Relations |
| Employment Alert - Recruitment & Discrimination - 9 June 2011
In the recent case Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 (the Bair case) , a potential employer asked questions in an interview which contravened section 124 of the Anti-Discrimination Act 1991 (Qld) (the Act).
Section 124(1) states ‘A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based’.
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| Employment Alert - Paid Parental Leave - 9 June 2011
The Federal Government Paid Parental Leave (PPL) scheme commenced for working parents of children born or adopted on or after 1 January 2011.
The PPL scheme provides Government-funded pay at the National Minimum Wage for a maximum period of 18 weeks. Payments can commence from the date of birth or adoption, or a later date. It must be taken in one continuous period and must all be used before 12 months from the date of birth or adoption. PPL is taxable and can be received before, after, or at the same time as existing entitlements such as annual leave, and employer-funded paid parental leave.
Where can an employer find best practice guidance? When is an employee eligible for PPL?
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| Property |
| Property & Strata Services Alert - Flood Insurance Policies & Strata Title - 7 December 2011
The catastrophic floods in Queensland, New South Wales and Victoria have prompted the Federal Government to take action on two fronts.
Changes to strata title insurance policies is a possibility; due to a parliamentary investigation and introduced proposed laws. The Federal Government will investigate the affordability of residential strata title insurance in a new inquiry. It will be taking submissions up until 16 January 2012. Strata title insurance cover is also under scrutiny with a new Bill proposing to make changes to insurance policies that relate to cover for flood.
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| Article - Recovering Queensland Fire & Rescue Services Call Out Fees - 8 June 2011
Before a strata titled building can be lawfully occupied in Queensland, the Body Corporate must enter into an agreement with Queensland Fire and Rescue Services (“QFRS”) for the installation and monitoring of fire safety/detection equipment.
When the fire alarm goes off, in most cases (thankfully) it is either a false alarm or something less than a fire which endangers the lives and property of the building occupants / owners. QFRS’s response to the alarm usually requires attendance on site and charging a call out fee if the call out is a false alarm.
Can a Body Corporate pass on the associated costs to an owner / occupier who was responsible for the false alarm? When will the QFRS issue a call out fee?
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| Property & Strata Alert - Neighbourhood Dispute Resolution Act - 5 August 2011
The Neighbourhood Dispute Resolution Act 2011 was passed by the Queensland Parliament on 2 August 2011. The Bill had been under consideration for some time, after having been tabled in Parliament originally on 25 November 2010.
Directly as a result of work undertaken by the SCA (Qld) Legislative Committee, of which the writer is the Chairperson, critical amendments to the Bill regarding trees and fences were made before the Act was passed.
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| Property Alert - Assignment Blocks Review - 21 June 2011
On 23 May 2011 the decision in Emvalle Pty Ltd as Trustee for the Alkaz Discretionary Trust trading as Aqua Vista Apartments v Body Corporate for Aqua Vista Apartments CTS 37051 (OCL096-10) was handed down from QCAT. The application concerned a remuneration and terms review under Section 130 of the Body Corporate and Community Management Act 1997.
Tribunal Member Barlow SC, dismissed the proceedings on the basis that QCAT had no jurisdiction. He reached this conclusion on the basis that review rights under Section 130 are only available to caretakers who were assigned or granted their Caretaking Engagement during the original owner control period.
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| Issue 10 - Why Make a Will? - July 2009
Many people still die without either having made a Will or with a Will that was hopelessly out of date. Many people mistakenly believe that their assets will go to their partner on death. The Intestacy rules (which apply where no volid Will is left) do not work for many people. if you are survived by a partner and children, then your partner will share in the estate with your children, which could cause financial difficulties or tension.
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