1.2 Auditors' liability: Commission publishes results of consultation on possible reform of liability rules in the EU

On 18 June 2007, the European Commission (Europa) published a summary of 85 replies to the public consultation on the possible reform of auditors' liability regimes in the EU, launched in January 2007 (see IP/07/60). The consultation was based on an independent study on the economic impact of current auditors' liability regimes and on insurance conditions in Member States.

The audit profession considers there is a need for a Commission initiative on auditors' liability. Outside the audit profession, the majority of respondents from countries where limitation exists also support a Commission initiative on this issue, whereas the majority of the respondents from countries without limitation reject any Commission action.

Regarding the different approaches to limiting auditors' liability proposed in the consultation paper, the audit profession prefers limitation based on capping, whereas the other respondents who support a Commission initiative would prefer a solution based on proportionate liability. Nevertheless, some respondents stress that if a Commission recommendation is adopted, it should give maximum flexibility to Member States in relation to the method of limitation at national level.

Choice in the audit market is recognised as an important issue that could jeopardise the efficiency of financial markets. However, not all respondents agree that limiting auditors' liability would be, by itself, an appropriate way to address the issue.

The responses authorised for publication and the summary of all responses are available on the Europa website.

While the UK's biggest companies are increasingly gearing their executive remuneration packages towards performance-related pay, a similar shift has not been made by their SmallCap and AIM-listed peers, according to the Executive Director Total Remuneration Survey - a joint project by Manifest and MM&K, the independent remuneration consultancy - published on 15 June 2007.

From the 431 SmallCap and AIM companies covered by the survey, only 40 chief executives received more than £100,000 last year by exercising share options or from the vesting of other share scheme awards. Three-quarters of these directors received nothing from long-term incentives.

In comparison, the shift towards performance-related compensation has led to a wide range of outcomes in terms of payouts received by FTSE 100 CEOs. The year's highest paid was Bart Becht, chief executive of cleaning product manufacturer Reckitt Benckiser. Becht collected £22m in 2006, of which £18m - that is 21 times his salary - came from gains on options exercised during the year and the vesting of other share schemes.

One in ten FTSE 100 chief executives received more than five times their salary from options and long-term incentive plan payouts.

Pay increases for chief executives of large companies (those with a market capitalisation of over £1bn) continue to outstrip average UK earnings: median total remuneration at large companies is now £2.2m p.a. - 240% higher than in 1998. Over the same period, average UK earnings have risen by 42%, retail prices by 21% and the FTSE 100 has grown by only 12%.

However, large companies' total remuneration growth rate of 6% for 2006 does represent a drop from the corresponding figure of 9% for the previous year. Furthermore, it is well below the long-term trend of 19% yearly growth since 1998.

In large companies the bonus maximum opportunity is much higher and bonus payments average 67% of salary (compared to 26% for smaller companies).

The difference in long-term incentive payouts is even more striking - median payout in larger companies is £117,000 p.a. and nothing in smaller companies.

Further information is available on the Manifest website.

On 15 June 2007, the Joint Forum of Canadian securities regulators released for public comment a "Proposed Framework 81-406; Point of sale disclosure for mutual funds and segregated funds." A key element of the Proposed Framework is a two-page document called "Fund Facts", which highlights critical information, including performance, risk and cost. This information will be presented to investors when they need it most - before they make a decision to buy a fund.

Copies of the Proposed Framework and accompanying backgrounder are available from the websites of CCIR, CSA or the Joint Forum.

Comments should be submitted to the Joint Forum Project Office at the address below by October 15, 2007.

Joint Forum Project Office
Joint Forum of Financial Market Regulators
5160 Yonge St,
Box 85, 17th Floor
North York, ON
M2N 6L9

On 15 June 2007, the Committee of European Banking Supervisors (CEBS) published a consultation paper on the risks arising from commodities business and from firms carrying out commodities business.

The report responds to the second part of a Call for Advice issued by the European Commission in August 2006 in which CEBS was invited to assess the prudential risks arising from the conduct of commodities business.

The Call for Advice is part of a larger review of the current provisions concerning commodities business and the prudential treatment of firms carrying out commodities business set out in the Directive 2004/39/EC on Markets in Financial Instruments (MiFID) and the Capital Requirements Directive (CRD, Directive 2006/48/EC and Directive 2006/49/EC).

The report is based on information provided by CEBS members and observers on the structure and regulatory coverage of their commodities markets as well as on information directly provided by market participants on their business, their risk structure and mitigants, their perception of the current regulatory framework and their concerns regarding any amendments to this framework.

The report concludes that at the market level the risks arising from commodities business and the risks in other financial markets (e.g. equity, FX, interest-rate) are generally the same and that these risks exist basically across all types of products (underlyings). In nearly all markets the majority of transactions are carried out OTC. Therefore, in the absence of the use of risk mitigation significant counterparty credit risk (CCR) arises. Other relevant risks identified are market risk, operational risk, legal risk and liquidity risk.

Systemic risk crystallizes through contagion which is transmitted via market participants' direct and indirect interdependencies. While the perceived interconnections may give rise to systemic risk concerns, their extent may depend on the size of the respective markets for commodities or exotic derivatives relative to the wider financial market or the related industry. Systemic risk concerns may vary widely across the different markets/underlyings and no generalization can be made.

The report also touches on the specifics of the commodities markets/business and their possible relevance to the prudential treatment of the variety of firms that are active in the commodities sector

The consultation paper is available on the CEBS website.

Australia's largest companies are increasing and deepening their involvement in the community as corporate community investment (CCI) is becoming a core part of business activity and strategy, according to a report released on 13 June 2007.

The report, by the Australian Centre for Corporate and Public Affairs (ACCPA) in conjunction with the Business Council of Australia (BCA), was commissioned by the Prime Minister's Community Business Partnership.

The Corporate Community Investment in Australia report demonstrates that while individual businesses are at many different stages in the development of CCI activities, companies on the whole are pursuing a more strategic, business-focused approach to community engagement than ever before.

The report has found:

The 2007 report follows a similar study released by ACCPA and the BCA in 2000 which found more traditional forms of business-community engagement, such as corporate philanthropy and ad hoc grant making, were being superseded by more strategic approaches.

The 2007 report deliberately describes business engagement in the community as 'corporate community investment' to reflect the increasing business focus and strategy now being developed around CCI.

The report concludes that the move toward a greater business and strategic focus on CCI among companies will continue, as firms continue to expand their CCI management resources and increasingly embed CCI into their corporate strategies.

At the same time, the report calls for greater formal recognition of CCI, particularly in business schools and management education, to reflect its increasing status and importance as a core business activity.

The report is available on the BCA website.

The latest review by the Australian Securities Exchange (ASX) of reporting against the ASX Corporate Governance Council's Principles and Recommendations, published on 13 June 2007, shows that listed entities have continued to improve their corporate governance reporting.

The overall reporting level for listed companies - the aggregate of adoption of recommended practices and of 'if not, why not' reporting - was higher in 2006 (90%) than in either of the two previous years ASX has conducted the review (2005 - 88% and 2004 - 84%).

According to the ASX in a statement accompanying publication of the review: "Good corporate governance is a culture of transparency and is not restricted to simply adopting the Recommendations. Good corporate governance also exists where entities adopt 'if not why not' reporting; that is, where entities identify the Recommendations they have not followed, explain why they have not followed them, and detail how their practices accord with the spirit of the relevant Principle. The corporate governance arrangements of many entities differ from the Recommendations but equally amount to good practice. Entities are able to adopt and explain the governance practices they consider appropriate to their circumstances."

The key findings from the review, which combined the results of listed companies and listed trusts for the first time, were as follows:

(a) Overall reporting levels - listed companies

(b) Overall reporting levels - listed trusts

(c) Top-500 listed entities - listed companies and listed trusts

(d) Adoption reporting levels

The results indicate that listed entities' understanding of the nature of this type of reporting continues to improve. The level of this type of reporting is high for:

The results emerge from ASX's review of the annual reports and relevant website sections of 1,294 listed companies and 77 listed trusts - 1,371 listed entities in total - that reported with a 30 June 2006 balance date. This number represents approximately 71% of all listed entities at that date.

The review is available on the ASX website.

On 13 June 2007, the Committee of European Securities Regulators (CESR) published a report entitled: "CESR's report on the supervisory functioning of the Prospectus Directive and Regulation" (Ref. CESR/07-225).

The objective of this report is to assess whether the new prospectus regime is achieving its objectives of protecting investors and lowering the cost of capital, and, in particular, whether it is contributing to the development of the single market for securities.

In general, most market participants seem to be satisfied with the new European legislation. They consider the Prospectus Directive and Regulation to be a step in the right direction in achieving a single market. Among the positive aspects of the new legislative framework, and despite the existence of a few obstacles in its practical functioning, respondents have highlighted the value of the passport mechanism as a useful tool in the development of a single market. Nevertheless, they have also identified certain provisions in the Prospectus Directive and Regulation that are causing some practical difficulties and they request CESR to advise the European Commission to work on the necessary amendments.

In particular, respondents identified a number of areas where divergent practices of the different competent authorities posed some difficulties, for example, in relation to the use of certain definitions (i.e. that of a public offer, transferable securities and qualified investors), or the use of exemptions which determine whether the obligation to produce a prospectus exists amongst others.

Further information is available on the CESR website.

On 12 June 2007, a report was released by the Association of Superannuation Funds of Australia (AFSA) giving a picture of the level and diversity of superannuation account balances in Australia.

Using newly available unit records from the Australian Bureau of Statistics 2003-04 Survey of Income and Housing, ASFA compiled the report - 'Are Retirement Savings on Track?' - on Australians' superannuation balances.

The average balances achieved in 2004 were:

The Westpac-ASFA Retirement Standard has found that to achieve a modest standard of living in retirement a single person would need to spend $18,375 a year. For a comfortable standard of living they would require $35,668 a year.

Retirement savings of over $100,000 are needed to achieve a modest lifestyle and over $260,000 is required for the comfortable lifestyle (assuming access to a full or part Age Pension).

Other findings in 'Are Retirement Savings on Track' included:

ASFA will also be releasing a report on the adequacy of the Age Pension later this year.

Further information is available on the AFSA website.

On 12 June 2007, the European Commission (Europa) announced that it welcomed the European Council's formal adoption of the Directive on the exercise of shareholders' rights, which means that the Directive is now officially part of EU law. The formal adoption follows agreement at first reading by the Council and the European Parliament in February 2007. Member States now have two years to implement the Directive in their national laws.

The Directive introduces minimum standards to ensure that shareholders of companies whose shares are traded on a regulated market have timely access to relevant information ahead of the general meeting (GM) and simple means to vote at a distance. It also abolishes share blocking and introduces minimum standards for the right to ask questions, put items on the GM agenda and table resolutions. The Directive allows Member States to take additional measures to facilitate further the exercise of the rights referred to in the Directive.

The Directive features the following key provisions:

The Commission proposed the Directive in January 2006 (IP/06/10). The Council of Ministers and the European Parliament reached agreement on the content of the future Directive in a single reading in February 2007 (IP/07/193). In May 2007 the Commission also published a consultation paper regarding a possible Commission recommendation on shareholders' rights that could complement the rules of the Directive.

More information on the Directive and the consultation is available on the Europa website.

On 11 June 2007, the UK Financial Services Authority (FSA) published its feedback to Discussion Paper 06/6 "Private Equity: A discussion of risk and regulatory engagement", which examined the impact that growth and development in the private equity market has on the FSA's regulation of the UK's wholesale markets.

The FSA views private equity as an important and growing part of a dynamic and efficient capital market. In DP06/6 the FSA identified the risks it perceived were posed to its statutory objectives by the growth in private equity and outlined the measures taken to mitigate these risks. The feedback received confirmed that it had correctly identified and prioritized those risks and that the proposed regulatory approach to dealing with them was appropriate and effective.

The most significant risks that the FSA continues to focus on in relation to private equity are those posed by market abuse and conflicts of interest. These will remain key areas of regulatory focus and the alternative investments supervision team will be conducting further work in relation to conflicts of interest in private equity firms.

In order to strengthen its oversight of the potential impact of the private equity market the FSA will improve its data collection on this market through:

Additionally, reflecting the increasing complexity of financing and risk distribution typically associated with leveraged buyout transactions, the FSA will be engaging in a targeted fact-finding exercise to understand the issues and risks inherent in dealing with financial distress and default in a heavily traded corporate name.

Also, the International Organization of Securities Commissions (IOSCO) has commissioned a taskforce to assess the impact of recent developments in the private equity market and identify issues which can be addressed within its remit.

The FSA will be chairing the work of this taskforce.

The feedback statement is available on the FSA website.

On 11 June 2007, the European Central Bank (ECB) published the ECB's structural issues report, which this year deals with "Corporate finance in the euro area".

The aim of this year's report of this year is to analyze the main features of the functioning of the market for corporate finance in the euro area, including the specifics of the national markets and the conditions applicable to the borrowers. Given the great interest in the issue of small and medium-sized enterprises (SMEs) access to finance, the report also analyses how financing patterns differ across large, medium and small enterprises. Finally, the report discusses the recent trends observed in the corporate finance landscape of the euro area over the past few years and how they have influenced the availability of external finance for firms.

The report is available on the ECB website.

On 6 June 2007, the Parliamentary Secretary to the Australian Treasurer, the Honourable Chris Pearce MP, released a discussion paper on financial reporting by unlisted public companies. The discussion paper analyses the current financial reporting requirements of unlisted public companies under the Corporations Act 2001 No. 50 (Cth). The paper aims to promote public debate on the appropriate financial reporting requirements for these companies.

The discussion paper is available on the Treasury website.

Interested parties are invited to provide written comments on the discussion paper.

Submission closing date: 3 August 2007

Address written comments to:
The General Manager
Corporations and Financial Services Division
The Treasury
Langton Crescent
PARKES ACT 2611

Email: UPCcomments@treasury.gov.au
Phone: 02 6263 3971
Fax: 02 6263 2770

On 6 June 2007, the Australian Prudential Regulation Authority (APRA) released a discussion paper and a draft prudential standard setting out its proposed approach to market disclosure under the new Basel II capital adequacy regime, known as the Basel II Framework.

The approach applies to all locally incorporated authorised deposit-taking institutions (ADIs) in Australia.

The proposals aim to enhance transparency and market discipline in Australian financial markets through high quality and timely market disclosure on the risk management practices and capital adequacy of ADIs.

Under APRA's proposed approach, all locally incorporated ADIs, including foreign owned bank subsidiaries, will be required to disclose publicly some basic quantitative information on their capital adequacy and credit risk exposures. This information is already provided to APRA on a quarterly basis. APRA is proposing that these disclosures be made in at least one location, generally on an ADI's website.

Australian-owned ADIs that have APRA's approval to use the more advanced Basel II approaches will be required to disclose publicly more detailed qualitative and quantitative information on their risk management practices and capital adequacy.

APRA's market disclosure proposals form part of the Basel II capital adequacy regime for ADIs that will come into force on 1 January 2008. The full suite of Basel II prudential standards is expected to be finalised in late 2007.

The discussion paper and the draft prudential standard are available on the APRA website.

1.15 OECD examines the role of hedge funds and private equity firms in corporate governance

On 5 June 2007, the OECD announced that OECD countries have agreed that the corporate governance practices of private equity firms and hedge funds are best addressed within the framework of the existing OECD Principles of Corporate Governance. They consequently rejected the idea of a separate OECD code on the role of hedge funds and private equity firms in corporate governance. The agreement came at a recent meeting of corporate governance experts and policy makers.

The OECD believes it is essential to take into account existing voluntary codes and industry guidelines when addressing issues that have attracted public concern, such as conflicts of interest, the efficiency of the market for takeovers, transparency around major shareholdings and the robustness of voting systems.

The Steering Group has based its conclusions on a new OECD report "The Implications of "Activist" Hedge Funds and Private Equity Firms in Corporate Governance". The report states that "activist" hedge funds and private equity firms can play a positive role in corporate governance of publicly held companies. They often act as informed owners and take a more active role in monitoring the performance of companies and their management than other institutional investors.

The report is available on the OECD website.

On 4 June 2007, the European Commission (Europa) published an external study on the question of proportionality between ownership and control in EU listed companies. The study finds that, on the basis of the academic research available, there is no conclusive evidence of a causal link between deviations from the proportionality principle and either the economic performance of listed companies or their governance. However, there is some evidence that investors perceive these mechanisms negatively and consider more transparency would be helpful in making investment decisions. The study was carried out by Institutional Shareholder Services Europe (ISS Europe), the European Corporate Governance Institute (ECGI) and the law firm Shearman & Sterling LLP.

The study will provide input for an impact assessment that the Commission will be carrying out between now and autumn 2007.

The study was commissioned in September 2006, following a public consultation carried out between December 2005 and March 2006 on future priorities in company law and corporate governance that confirmed the need for additional information on the factual situation in the EU regarding the issue of proportionality between capital and control. The objective of the study was to identify existing deviations from the proportionate allocation of capital and control across EU listed companies, and to evaluate their economic significance and whether such deviations have an impact on EU financial markets.

The objective was to obtain a picture that would be as comprehensive as possible. The scope of the study was therefore defined very broadly. It encompasses the review of such mechanisms as multiple-voting rights, voting caps and non-voting preferential shares, as well as of tools such as shareholders' agreements, cross-shareholdings and company pyramids.

The study scrutinizes the regulatory framework in 19 jurisdictions (including 3 from outside the European Union) and examines the situation of 464 listed European companies. The study also consists of a review of the available academic literature and empirical evidence on the proportionality principle as well as a survey of institutional investors which assesses what role the proportionality principle plays in their investment decisions.

The study is available on the Europa website.

On 4 June 2007, the UK Treasury published Professor Paul Davies' final report on issuer liability to investors in respect of misstatements to the market. The report recommends that the Treasury should use its power in section 90B of the Financial Services and Markets Act 2000 (FSMA) to extend the statutory liability regime in section 90A of FSMA in relation to issuer liability for misstatements to the market.

By way of background, section 90A of the FSMA was introduced as part of the implementation of the Transparency Directive. It provides that only the issuer is liable to compensate an investor who acquires securities and suffers loss as a result of an untrue or misleading statement or omission in a periodic financial report required by the Transparency Directive or in a preliminary statement. An issuer will then only be liable to investors where a director knew or was reckless as to whether this statement was untrue or misleading or knew that the omission was a dishonest concealment of a material fact.

Professor Davies issued a discussion paper in March 2007. The four key recommendations contained in the final report for an extension of the section 90A regime are:

The report recommends no change in the regime set out in section 90A as regards the following:

1.18 Review of New Zealand financial reports

On 1 June 2007, the New Zealand Securities Commission announced that it had completed the fourth cycle of its financial reporting surveillance programme.

The Commission reviewed financial reports of 40 issuers with balance dates from 30 June 2005 to 31 March 2006. Nine of the issuers were early adopters of New Zealand Equivalents to International Financial Reporting Standards (NZ IFRS).

Seventeen issuers had matters that needed to be addressed.

Of the seventeen issuers the Commission wrote to, satisfactory agreement was reached on 85% of matters raised. Three significant matters are being followed up separately.

The review also identified issues relating to non-disclosure of waivers in annual reports. One matter was referred to NZX and two other matters were referred to NZX Discipline Special Division.

The reviews aim to encourage issuers to improve the quality of their financial reports and thus contribute to the integrity of New Zealand's securities markets.

The Commission will continue its financial reporting surveillance programme.

The report is available from the New Zealand Securities Commission.

On 31 May 2007, the Parliamentary Secretary to the Australian Treasurer, the Honourable Chris Pearce MP, introduced the Corporations Amendment (Insolvency) Bill 2007 (Cth) into Parliament. This Bill will improve the efficiency and the cost effectiveness of insolvency processes, strengthen the rights of employees, and enhance the capacity of creditors to maximise their returns.

These reforms were developed on the basis of recommendations from a number of public reviews into the Australian insolvency framework. The Bill has benefited from extensive industry consultation, initially through the Insolvency Law Advisory Group and subsequently through the public release of draft legislation in November 2006.

The Insolvency Bill will:

The key features of the Bill are as follows:

(a) Improving outcomes for creditors (Schedule 1)

Part 1 - Employee entitlements

Part 2 - Better informing creditor decisions

Part 3 - Streamlining external administration

Part 4 - Pooling

(b) Deterring corporate misconduct (Schedule 2)

(c) Improving regulation of insolvency practitioners (Schedule 3)

(d) Fine-tuning voluntary administration (Schedule 4)

Part 1 - General

Part 2 - Rights to property during administration

Part 3 - Liquidation following administration

On 1 June 2007, the International Association of Insurance Supervisors (IAIS) and the Consultative Group for Assisting the Poor (CGAP) released a paper entitled "Issues in regulation and supervision of microinsurance", prepared by the IAIS-CGAP Joint Working Group.

Regulators and supervisors in emerging market jurisdictions realise that a more conducive and enabling regulatory environment creates an "inclusive" insurance market that works effectively for the upper as well as the lower income segments, with the latter being the focus of "microinsurance".

Microinsurance is insurance that is accessed by the low-income population, provided by a variety of different entities, but run in accordance with generally accepted insurance practices. Importantly, this means that the risk insured under a microinsurance policy is managed based on insurance principles and funded by premiums.

The paper outlines salient features of regulation and supervision of microinsurance. It recognises that the IAIS Insurance Core Principles are the foundation of all insurance supervision, including microinsurance.

Further information is available on the IAIS website.

On 31 May 2007, the Australian Accounting Standards Board (AASB) released invitation to comment ITC 12 'Request for Comment on a Proposed Revised Differential Reporting Regime for Australia and IASB Exposure Draft of a Proposed IFRS for Small and Medium-sized Entities'. The purpose of ITC 12 is to invite comments from Australian constituents on the Board's preliminary views on a revised differential reporting regime for Australia and on the Exposure Draft (ED) issued by the IASB in February 2007. The ITC requests that constituents provide their comments to the AASB by 1 September 2007. This will enable the AASB to consider Australian constituents' comments in the process of formulating its own comments to the IASB, which are due by 1 October 2007.

The IASB's ED is developed for smaller entities that are not listed or deposit takers. It proposes simplified recognition and measurement requirements and reduced disclosures compared to full IFRSs. The ED is 380 pages long compared to 2400 pages for full IFRSs.

The AASB Chairman, Professor Boymal said that:

Professor Boymal added that:

Copies of ITC 12 are available on the AASB website.

1.22 Investors expectations in relation to unlisted managed funds

On 29 May 2007, the Australian Shareholders' Association (ASA) released the consultation draft of its policy statement, 'What Investors Expect - Unlisted Managed Investments'.

The ASA will accept comments on the draft policy statement up to 31 July 2007.

According to the draft policy statement, investors expect:

Excessive legislation is identified as the greatest risk facing the insurance industry by the CSFI's latest survey published on 29 May 2007, in association with PricewaterhouseCoopers LLP.

More than 100 respondents to the survey say that excessive regulation is endangering the industry by loading companies with costs, distracting management and creating barriers to competition and innovation. This finding is linked to concern about growing political interference, particularly in markets where governments regulate insurance products and prices.

Over-regulation is widespread. With responses from 21 countries, the survey shows it to be a major issue in North America, Europe, South Africa and the Asia Pacific. Sectorally, concern is strongest among life insurance companies, followed by the property & casualty sector. More than 80 per cent of the insurance industry respondents were senior executives or directors.

Other high level risks identified by the survey include natural catastrophes and climate change, where insurance losses for the property and casualty sector are rising fast, particularly in heavily populated areas. The main risks facing the life insurance industry include growing human longevity and the soundness of assumptions going into the pricing of life policies.

The survey was conducted at a time when the traditional cycle in the property and casualty market is turning down. Respondents say that insurers are striving to maintain revenues by taking on extra risk, cutting prices and loosening the wording of insurance contracts. This raises concerns about the profitability of the industry, and the risk that insurers will be exposed to "long tails" - insurance risks that could take years to materialise.

The quality of management in the insurance industry is also a major source of concern. Responses to the survey show widespread doubts about the industry's ability to meet growing challenges from regulation, new competitors, technological change and product innovation. The industry is also seen to be failing to attract new blood because of an image problem. Like regulation, the management issue is geographically widespread.

One of the operational challenges facing the industry is the modernisation of back office systems and technology. Much of the industry is technologically obsolete, even paper-based, which ties its hands when competing with new entrants into the business: better equipped banks and Internet-based suppliers.

The survey also shows which risks are seen to be receding. Notable is asbestos, once the scourge of the industry, now at the bottom of the list with insurers feeling it is manageable. The problems of under-regulation are also low down the list, though it is felt that several emerging markets need better controls.
Although the survey exposes some potentially worrying risks, it also brings better news about the industry's preparedness. Only three per cent of respondents think insurers are "poorly" prepared to meet the risks that lie ahead. Just over 20 per cent answer "well" and the rest give a mixed response.

Further information is available on the PricewaterhouseCoopers website.

On 24 May 2007, the US Public Company Accounting Oversight Board (PCAOB) voted to adopt Auditing Standard No 5, "An Audit of Internal Control over Financial Reporting that is Integrated with an Audit of Financial Statements", to replace its previous internal control auditing standard, Auditing Standard No. 2. The Board also adopted the related Rule 3525, "Audit Committee pre-Approval of Non-Audit Services Related to Internal Control over Financial Reporting", and conforming amendments to certain of the Board's other auditing standards.

The auditing standard adopted by the Board is principles-based. It is designed to increase the likelihood that material weaknesses in internal control will be found before they result in material misstatement of a company's financial statements, and, at the same time, eliminate procedures that are unnecessary.

The final standard also focuses the auditor on the procedures necessary to perform a high quality audit that is tailored to the company's facts and circumstances. The Board worked closely with the Securities and Exchange Commission to coordinate Auditing Standard No. 5 with the guidance to public company management the SEC approved on 23 May 2007 (see item 1.27 of this Bulletin).

As part of the Board's commitment to the effective implementation of the new standard, the Board intends in the coming months to adjust its inspection program to assure that it is consistent with the new standard and its principles-based approach. The PCAOB is also continuing to develop for auditors of smaller public companies tailored guidance for applying the new standard as outlined in its four-point plan of May 2006. The Board also is continuing to hold its Forums on Auditing in the Small Business Environment as a way to further monitor implementation issues related to smaller public companies.

The adopted standard and related documents are available on the Board's Web site under Rulemaking Docket 21.

The Board's new standard is designed to achieve four objectives:

On 24 May 2007, the Honourable Chris Pearce MP, Parliamentary Secretary to the Australian Treasurer, introduced into the House of Representatives the Corporations Legislation Amendment (Simpler Regulatory System) Bill 2007 (Cth). The Bill implements the bulk of the proposals in the Proposals Paper released by Mr Pearce in November last year, covering a range of regulatory areas such as financial services, financial reporting, takeovers, auditor independence, corporate governance and fundraising. It also contains some additional initiatives that were developed during the consultation process.

The Bill also includes the Government's response to a number of recommendations of the Rethinking Regulation report of the Banks Regulation Taskforce of January 2006, including initiatives relating to: the use of the internet for financial reporting; financial reporting thresholds for proprietary companies; reporting requirements for executive remuneration; and fundraising requirements for employee share schemes.

The Simpler Regulatory System Bill was passed by Parliament on 21 June 2007.

The key objectives of the Simpler Regulatory System package are outlined below.

(a) Improving access to financial advice

(b) Enhancing investor participation

(c) Greater business efficiency

(d) Reducing compliance costs

(e) Streamlining regulatory processes

Further information on the Simpler Regulatory System Bill is available on the Treasury website.

On 23 May 2007, the US Securities and Exchange Commission (SEC) proposed a series of six measures to modernize and improve its capital raising and reporting requirements for smaller companies. Many of the proposals address key recommendations made by the SEC's Advisory Committee on Smaller Public Companies in its final report.

They include:

Further information is available on the SEC website.

On 23 May 2007, the US Securities and Exchange Commission (SEC) unanimously approved interpretive guidance to help public companies strengthen their internal control over financial reporting while reducing unnecessary costs, particularly at smaller companies. The new guidance will enhance compliance under section 404 of the Sarbanes-Oxley Act of 2002 by focusing company management on the internal controls that best protect against the risk of a material financial misstatement.

The Commission also approved rule amendments providing that a company that performs an evaluation of internal control in accordance with the interpretive guidance satisfies the annual evaluation required by Exchange Act Rules 13a-15 and 15d-15. The Commission also amended its rules to define the term "material weakness" as "a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company's annual or interim financial statements will not be prevented or detected on a timely basis." The Commission also voted to revise the requirements regarding the auditor's attestation report on the effectiveness of internal control over financial reporting to more clearly convey that the auditor is not evaluating management's evaluation process but is opining directly on internal control over financial reporting.

Further information is available on the SEC website.

2.1 Time-critical superannuation advice

On 18 June 2007, the Australian Securities and Investments Commission (ASIC) issued a Class Order, [CO 07/447] "Temporary extension of time for SOA delivery", to help retail investors get financial advice in the lead-up to the new superannuation arrangements that start on 1 July this year.

ASIC is aware that many investors are consulting licensed advisers about decisions they may want to make before 30 June. Industry associations have informed ASIC that the number of investors seeking this kind of advice is so large that, in some cases, advisers may be unable to provide advice in these time-critical situations unless the normal period for providing a Statement of Advice (SOA) is changed.

ASIC supports the view of industry associations that it is important that, as far as possible, those making superannuation decisions in this period have access to advice from licensed professionals.

So ASIC has changed the time by which a written SOA must be given in these circumstances from five days to 30 days.

ASIC stresses that, apart from the time allowed providing an SOA, all the rules about giving advice remain unchanged. Crucially, this includes the adviser's obligations to give quality advice that takes into account a client's needs and circumstances. Investors' rights to take action for losses resulting from non-complying advice are also unchanged.

The ASIC class order also requires advisers giving advice in these circumstances to give written disclosure to the client, pointing out that the client may not receive a written statement of advice in time to help with other decisions they may need to make, such as exercising cooling off rights.

The relief provided by the class order is effective until 30 June.

The class order is available on the ASIC website.

On 18 June 2007, the Australian Securities and Investments Commission (ASIC) announced the extension of existing transitional relief for general insurers and actuaries.

In both cases, the extension of relief is until 31 August 2007.

(a) General insurance transitional disclosure relief

Corporations Regulations 7.9.15D-7.9.15F modify the application of financial services disclosure provisions to general insurance products. These regulations have a transition period which expires on 20 June 2007. During the transition period, general insurers can either comply with the modified disclosure requirements, or continue to comply with the provisions as they stood before the modifications. ASIC's relief, provided under ASIC Class Order [CO 07/409] "General Insurance Disclosure: Extension of Transitional Period", extends the transition period in the regulations until 31 August 2007.

On 12 February 2007, the Government announced amendments to the Insurance Contracts Act 1984 No. 80 (Cth), which will, amongst other things, affect the disclosure that must be provided by insurers within insurance contracts. On 26 March 2007, the Government announced proposed new Corporations Amendment Regulations to simplify the financial services regime. Amongst other things, these new regulations will modify financial services disclosure provisions, including in relation to dollar disclosure provisions for general insurers. Both of these sets of legislative changes will require insurers to make changes to their disclosure documentation.

ASIC's [CO 07/409] will extend the period of time before general insurers have to comply with the disclosure obligations in Corporations Regulations 7.9.15D-7.9.15F. This will enable general insurers to update their disclosure documents at one time, following the commencement of new requirements in the Insurance Contracts Act 1984 No. 80 (Cth) and proposed new Corporations Amendment Regulations announced by the Parliamentary Secretary to the Treasurer on 26 March 2007.

(b) Licensing relief for actuaries

ASIC has also issued an extension of the licensing relief that actuaries have from the requirement to hold an Australian Financial Services Licence (AFSL). ASIC's current relief would otherwise have ceased on 30 June 2007. The extension of the relief is provided under ASIC Class Order [CO 07/410] "Actuaries: Further Extended Transitional Relief" and means that actuaries who can rely on the Class Order will be exempt from holding an AFSL until 31 August 2007.

The short extension has been given by ASIC so that actuaries can continue to have the benefit of the current relief until the commencement of a regulation later this year that should exclude actuaries from the licensing requirements under the Corporations Act 2001 No. 50 (Cth) when providing the usual professional services of an actuary.

Further information is provided in ASIC Information Release [IR 05-37] ASIC further extends interim relief for actuaries, Information Release [IR 06-19] ASIC further extends interim relief for actuaries and general insurers, Information Release [IR 03-43] ASIC provides temporary relief during period of consultation, and [IR 06-46] ASIC further extends interim relief for actuaries, which are available on the ASIC website.

On 12 June 2007, the Australian Securities and Investments Commission (ASIC) released four template designed to assist those parties considering offering an enforceable undertaking.

Enforceable undertakings are one of a number of remedies available to ASIC for breaches of the legislation it is responsible for enforcing. They are generally accepted by ASIC as an alternative to civil or administrative action but are not appropriate in place of criminal proceedings or in matters involving deliberate fraud or misconduct.

The four templates cover:

ASIC announced the forthcoming release of these templates as a supplement to "Enforceable Undertakings: An ASIC Guide", when it released the guide on 13 March 2007.

The templates are available from the ASIC website, and will be expanded upon and updated as necessary.

The Guide is also available on the ASIC website.

On 12 June 2007, the Australian Securities and Investments Commission (ASIC) announced improvements to its online services that will make it easier for consumers and investors to make a complaint about a licensed financial services business.

ASIC maintains a public register, available on the ASIC website of all businesses licensed to conduct financial services in Australia including banks, credit unions, insurance companies, stockbrokers and financial planners. Information contained on the register will include details of the external dispute resolution (EDR) scheme(s) each licensee belongs to.

The seven ASIC-approved EDR schemes covering different sectors of the financial services industry are:

In addition, the Superannuation Complaints Tribunal (SCT) is a statutory EDR scheme that deals with complaints about superannuation providers.

Between them, the EDR schemes deal with over 100,000 complaints and enquiries from consumers and investors annually. In addition, all seven EDR schemes participate in a common call centre for initial enquiries and complaints from consumers and investors. Anyone phoning the call centre on 1300 78 08 08 will be told how to progress their complaint, or transferred directly to the appropriate EDR scheme.

Dealing with a licensed financial business affords consumers and investors certain legal protections. Whilst these protections are limited, and do not guarantee investment performance, dealing with an unlicensed entity provides no legal protection whatsoever.

All consumers and investors have the right to make a complaint about an unsatisfactory financial product or service. ASIC produces a free consumer guide, "You Can Complain", about how to make an effective complaint.

For further information about how to complain is available on the ASIC's consumer website.

On 8 June 2007, the Australian Securities and Investments Commission (ASIC) reissued its Policy Statement 184 "Superannuation: Delivery of product disclosure strategies" (PS 184) which deals with how superannuation trustees (trustees) can comply with section 1012IA of the Corporations Act 2001 No. 50 (Cth) (the Act) and deliver product disclosure information about investment strategies to members. PS 184 was originally issued in August 2006.

ASIC has reissued PS 184 to take into account practical concerns raised by industry about when s1012IA applies and how trustees can comply with the policy with as much flexibility as possible. After extensive and ongoing consultation with industry ASIC considers that the extra compliance option and clarifications in the reissued policy will make it easier for trustees to comply with s1012IA and provide disclosure about accessible financial products included in investment strategies offered to members.

The main refinement to PS 184 allows a trustee to include information about an investment strategy with a specifically identified financial product to be contained in the same Product Disclosure Statement (PDS) for the superannuation product itself.

This means that trustees now have three options for providing disclosure about investment strategies with specifically identified financial products (accessible financial products) to members by:

ASIC has also adjusted the transition period to comply with s1012IA. All new trustees will need to comply with the new transition period rules from 1 July 2007.

However, all current trustees will need to comply when they next issue a new complete PDS after 1 July 2007 for the superannuation product or 1 July 2008, whichever is the earlier. The amended transition period will allow trustees to comply with s1012IA and take into account the compliance options offered.

On 31 May 2007, the Australian Securities and Investments Commission (ASIC) released a consultation paper outlining its proposed policy on licensing relief for trustees of wholesale equity schemes.

A wholesale equity scheme refers to an unregistered managed investment scheme that primarily invests in the securities of unlisted companies and whose members are all wholesale clients. The manager of this kind of venture capital arrangement will typically establish the wholesale equity scheme by way of multiple trusts with separate corporate trustees that are related bodies corporate of the manager.

The Corporations Act 2001 No. 50 (Cth) is likely to require these trustees to hold an Australian financial services (AFS) licence for providing dealing and custodial and depository services.

To facilitate consultation, ASIC has given interim conditional licensing relief to trustees in Class Order [CO 07/74] until 31 December 2008 if the manager, as an AFS licensee, accepts responsibility for financial services provided by the trustee as if the trustee were its representative by applying for a variation of its licence reflecting the relief.

The licensing relief is intended to remove impediments to business in the venture capital industry by removing unnecessary regulatory burdens. ASIC has given interim relief to enable ASIC to further consider the appropriateness of the AFS licensing requirements to trustees of wholesale equity schemes, and discuss ongoing relief with industry.

ASIC invites comments on the proposals in the consultation paper by 15 August 2007.

Publication of the final policy is expected by June 2008.

The consultation paper and interim class order are available on the ASIC website.

On 28 May 2007, the Australian Securities and Investments Commission (ASIC) issued a further updated guide for product issuers to help them comply with the Corporations Amendment Regulations 2005 (No. 1) (the enhanced fee disclosure regulations).

The revised "Enhanced fee disclosure regulations: Questions and Answers - an ASIC Guide" answers commonly asked questions about compliance with the regulations. It also incorporates some questions and answers released during 2005.

ASIC will continue to update this guide from time to time in response to new commonly asked questions or based on its regulatory experience. For example, ASIC is aware that further guidance may be needed on:

Background

The enhanced fee disclosure regulations include measures on the disclosure of transactions and fees and costs in product disclosure statements (PDSs). These provisions require PDSs for certain investment-linked financial products to include:

On 26 March 2007, Treasury released for comment draft Corporations Amendment Regulations that proposed extending the enhanced fee disclosure regime to investment life insurance policies. A date for the commencement of the regulations is yet to be announced.

This updated guide amends and deletes some questions in Section A. The new questions answered in this update of the guide relevant to all issuers are as follows:

The new questions answered in this update of the guide relevant to issuers of managed investment products are as follows:

The Guide 'Enhanced fee disclosure regulations: Questions and Answers - an ASIC Guide' is available on the ASIC website.

On 28 May 2007, the Australian Securities and Investments Commission (ASIC) released technical updates to three ASIC policy statements, a guidance paper, and a number of class orders relating to financial services providers to ensure users of its policy publications are working with the most current information.

The updated policy statements are:

The updated guidance paper is titled Licensing: The Scope of the Licensing Regime: Financial Product Advice and Dealing - an ASIC Guide ('Advice and Deal Guide').

The policy statements and guides have been updated to take account of the regulations made on 15 December 2005 amending the financial services regime. These regulations implement the Federal Government's Refinements to Financial Services Regulation (FSR) proposal paper issued on 2 May 2005.

The amendments are of a minor and technical nature and do not raise new policy issues.

ASIC will continue to monitor the currency of its publications in light of legislative changes and developments to ASIC policy, and will update them as required. For example, further updating may be necessary to reflect the implementation of the Government's current Corporate and Financial Services Regulatory Review.

Copies of the policy statements and guidance papers are available on the ASIC website or by calling the ASIC Infoline on 1300 300 630.

On 22 May 2007, the Australian Securities and Investments Commission (ASIC) announced that it is conducting a review of its policy on retail financial adviser training standards (Policy Statement 146 Licensing: training of financial product advisers). ASIC has begun to meet with key stakeholders, and will continue to do so to help identify the key issues and options for the review.

The review was first foreshadowed in the Parliamentary Secretary's Corporate and Financial Services Regulation Review - Proposals Paper released in November 2006. ASIC will release a public consultation paper in July to seek broad input on the review.

ASIC considers that, generally speaking, minimum training standards are appropriate for people providing financial product advice to retail clients. The minimum standards in PS 146 have been in place for a number of years, and advisers and licensees have expended considerable time and money obtaining the relevant training. ASIC is not planning to fundamentally revisit the current training standards.

ASIC anticipates that the review will focus on:

Initial meetings with stakeholders suggest that there may be industry concerns about the quality of some courses on the training register and how up to date they are. ASIC would welcome any further information stakeholders are able to provide on this topic.

Copies of the Licensing: training of financial product advisers is available on the ASIC website by calling the ASIC Infoline by calling 1300 300 630

Copies of the Parliamentary Secretary's Corporate and Financial Services Regulation Review - Proposals Paper (November 2006) can be obtained from The Treasury website.

3.2 ASX welcomes Government commitment to emissions trading scheme

ASX welcomes the Federal Government's commitment to introduce an Emissions Trading Scheme (ETS). The introduction of an ETS will provide business with certainty regarding the cost of emitting greenhouse gases. It will also enable industry to reduce emission levels at the lowest cost to the Australian economy.

Key to the success of the proposed ETS will be the introduction of a futures market for emission permits and any fungible carbon-related products. A futures market will generate the short and long-term price signals and risk mitigation required to underpin investment certainty.

The ASX is appointing its own working group to facilitate industry input into the design of an appropriate futures market and to provide advice to the Federal Government on the design aspects of an ETS required to facilitate an efficient secondary market for emission permits.

Further information is available on the ASX website.

ASX announced on 1 June 2007 a number of changes to ASX's supervisory investigation powers and process.

The objective of the changes is to improve the efficiency and effectiveness of ASX supervision for the benefit of all market stakeholders.

The changes relate to the:

The changes follow a period of public consultation about the proposal paper "Supervisory Powers and Processes", released for comment in December 2006.

Further information is available on the ASX website.

On 7 June 2007, the Takeovers Panel released Guidance Note 19 in relation to when the Panel may consider unacceptable circumstances exist where there is insider participation in control transactions.

Guidance Note 19 follows a draft Guidance Note and Issues Paper which were published on 21 February 2007. The Panel received fifteen submissions in response to the draft Guidance Note and Issues Paper. The very large majority were supportive of the Panel's proposed Guidance Note and its content.

The Panel has also released a Public Consultation Response Statement which sets out the main comments that the Panel has received and the reasons why the Panel has taken up, or not taken up, the comments or suggestions received.

The Guidance Note and Response Statement are available on the Panel website.

(By Matthew Davis, Mallesons Stephen Jaques)

Capricornia Credit Union Ltd v Australian Securities and Investments Commission, [2007] FCAFC 79, Federal Court of Australia, Full Court, Dowsett, Edmonds and Besanko JJ, 5 June 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2007/june/2007fcafc79.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This case concerned applications by Mackay Permanent Building Society ('Mackay') to ASIC to approve access to Capricornia Credit Union Ltd ('Capricornia') members' register pursuant to section 173(3B) of the Corporations Act 2001 No. 50 (Cth). Mackay's submitted purposes included not only informing the members of a proposed takeover of Capricornia by Mackay, but, more contentiously, also included purposes to convene a meeting of members for them to direct Capricornia's board to act in certain ways, to change the composition of the board to create a board more receptive to Mackay's takeover and to amend the company's constitution so as to confer upon its members the right to direct the board to act. The court's judgment considered these purposes in line with generally accepted directors' duties and powers and concluded that some of the purposes would, if carried out, amount to members unlawfully usurping directors' management roles. The constitutional amendment was the only one of the contentious purposes to survive.

(b) Facts

Mackay made a takeover offer for Capricornia and to facilitate this, wished to communicate directly with Capricornia members. As Capricornia is a credit union, the general Corporations Act 2001 No. 50 (Cth) section 173 rules relating to access to the members' register apply in a modified form - which applies to building societies, credit societies or credit unions - requiring ASIC consent for access. Accordingly, Mackay made two applications to ASIC for approval pursuant to section 173(3B); a section inserted by regulation 12.8.06 of the Corporations Regulations 2001 No. 193 (Cth).

The proposed purposes for which the initial application (19 October 2004) to access the registers was made were, in relation to a merger proposal:

'To communicate (in writing, by telephone or by public forum) with the members . of Capricornia . for the sole purpose of providing material and other information:

Capricornia made submissions opposing the application. Nevertheless, in March 2005, ASIC approved purposes 1, 2 & 4, but declined purpose 3.

Mackay made its second application (27 April 2005) for one further purpose ["purpose 5"]; to pass resolutions amending Capricornia's constitution so as to expressly confer upon its members the power to give directions or recommendations to Capricornia's board with respect to the proposed merger. Again Capricornia made submissions opposing the application; however, ASIC approved purpose 5.
The Administrative Appeals Tribunal (Deputy President Muller) heard Capricornia's review of both ASIC decisions and Mackay's review of ASIC's initial decision, upholding both ASIC decisions. Capricornia appealed to the Federal Court.

(c) Decision

The judgment primarily deals with two issues:

(i) Specific takeover chapters do not exclude general register access provisions

Capricornia argued that as a scheme of arrangement or takeover was contemplated, only the specific statutory procedures prescribed in connection with such transactions - chapters 5 and 6 - could be used, excluding other general provisions, such as section 173(3B). However, based on the wording of the legislation, the court dismissed this argument. Thus, a takeover context, of itself, will not be a bar to access to a target company members' register.

(ii) Directors' duties: introduction

As some of the proposed purposes (namely 3, 4 & 5) touched on the respective roles of directors and members, the appropriate relationship between members of a corporation and its board was considered. Capricornia attacked purposes 3, 4 and 5 on the grounds that they undermine the duties of directors and effectively remove the management of Capricornia from its directors and place it in the hands of the members.

(iii) Directors' duties: purpose 3 (directions to the board)

The court accepted that the Capricornia board is obliged to perform the functions conferred upon it by its constitution, a factual analysis of which determined that the management of the business is indeed vested with its directors. The court accepted relevant precedent that members generally may not instruct directors as to the performance of their duties. For this reason, the court agreed with the Tribunal's decision that purpose 3 should not have been approved.

(iv) Directors' duties: purpose 4 (change in composition of the board)

Their Honours noted that 'the effect of the proposal is that the board be re-constituted to comprise directors who will act in accordance with members' directions without exercising any personal judgment', rather than 'observing the directors' duties imposed upon them by sections 180 and 181 and the general law.' This amounted to a fatal flaw. Thus the court held that pursuant to section 249Q, no meeting could be convened for the improper purpose of 'constituting a board comprised of directors who will act in breach of [their] duty'.

Interestingly, the court may have been willing to allow purpose 4 if purpose 5 (amendments to the constitution) had been already passed as, in that case, the 'directors will be obliged to give effect to members' directions in connection with Mackay's proposal'. However as the amendment had not yet been passed, the issue was irrelevant.

Accordingly, ASIC and the Tribunal's approvals for purpose 4 were set aside.

(v) Directors' duties: purpose 5 (amend constitution)

The court recognised that the real intention of this proposal 'is that the members have the authority to give directions . [which] carries implications that the board is to obey them'. The court was concerned that such directions may be contrary to directors' duties. Although, in the absence of a direction, the board could act in accordance with their constitutional and statutory obligations, the court was concerned should there be a clash between their duties and any such direction.

Mackay submitted that the effect of the proposed amendment would be 'to reduce the scope of the directors' powers and duties under the constitution so that action taken pursuant to any direction will not involve breach of any statutory or general law obligation'. While the court readily accepted that under the traditional general law, members can so amend their constitution, they were unambiguous that 'there is no statutory authorisation for members to relieve directors from the duties imposed by sections 180 and 181'.

The court further noted that the section 199A and 199C indemnity provisions 'proscribe any exemption from, or indemnity against, liability to the corporation arising from any breach of [those duties]'. While 'the exercise of powers and discharge of duties derived from the constitution may be amenable to members' direction, if permitted by that constitution, the exercise of powers and discharge of duties derived from other sources may not be so amenable'. The court also entertained, but dismissed suggestions that the proposed amendment could, per se, be oppressive, although they observed that directions made pursuant to it may be.

The court also considered a number of practical issues such an amendment would raise - including how any direction is to be carried into effect and how timely decisions can be reached - concluding that there 'are likely to be considerable difficulties' with the implementation of purpose 5.

Nevertheless, the court ultimately concluded that these problems will 'arise from the nature of any direction which might be given pursuant to the amendment rather than from the amendment itself.' Therefore the court found itself 'unable to conclude that the purpose [5] was unlawful or improper' and thus upheld the Tribunal's decision approving purpose 5, although reserving that the validity of any direction would have to be assessed on its individual merits.

The judgment also granted leave to Capricornia to further amend its notice of appeal.

(By Sophie Purser, Blake Dawson Waldron)

Re:JN Taylor Holdings Limited (In Liq) [2007] SASC 193, Supreme Court of South Australia, Debelle J, 25 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/sa/2007/may/2007sasc193.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This case concerned an application by a liquidator pursuant to sections 477(2A) and 477(2B) of the Corporations Act 2001 No. 50 (Cth) for leave to compromise a debt and for leave to enter into an agreement to effect that compromise where the agreement will operate for more than 3 months.

In addition, the liquidator also sought orders to protect the confidentiality of the agreement for which he was seeking the court's approval, being orders to:

Debelle J considered the following issues in reaching a decision:

Debelle J found in favour of the applicant, approving the entry by the liquidator into the compromise and allowing the hearing of the application in a closed court, with necessary orders made to protect the confidentiality of documents filed in support of the application

(b) Facts

The liquidator of JN Taylor Holdings Limited had applied for leave of the court to compromise a debt and to enter into an agreement to effect that compromise where the agreement will operate for more than 3 months.

The compromise in question involved a "substantial sum of money", however the details in the judgment are sparse out of respect for the confidential nature of the transaction. The liquidator had obtained the advice of an experienced Senior Counsel that confirmed that the compromise had provided a "very substantial benefit" to the preference shareholders. The liquidator had already made two payments to preference shareholders which totalled a distribution of 40 cents in the dollar. When the amount of the compromise was added to available funds, the liquidator would have been able to make a further distribution of about 30 cents in the dollar, with payment to be made before 30 June 2007.

At the time when the liquidator entered into the agreement, the Committee of Inspection had been reduced to one. The Committee was therefore unable to approve the compromise. By an order dated 23 March 2007, the Committee of Inspection had been increased to 2; however the liquidator had sought the approval of the court on the basis that it was not appropriate for a newly appointed member of the Committee to be burdened with the decision whether to approve the compromise.

The liquidator contended that the application should be held in closed court and the documents filed in support of the application should be sealed up and not be available for inspection by any person unless the court made a specific order permitting inspection. The liquidator claimed that if the events leading to the compromise and the nature of the compromise were disclosed, litigation might result in which the compromise could be challenged causing the other party to the contract to terminate the contract.

The application was listed for hearing before a Master of the court, who referred the application to a judge.

(c) Decision

(i) Closing of the court and sealing of confidential documents

Debelle J made an interim order to close the court at the outset. Debelle J then reviewed that order and considered the extent to which the transcript of the hearing should remain confidential in this judgment.

Debelle J noted that it is a well settled principle of the common law that the courts must administer justice publicly and in open court. However, Debelle J gave detailed consideration to the exceptions to this rule that are grounded in what Viscount Haldane LC described in Scott v Scott [1913] AC 417 (at 437-438) as the more fundamental principle that the chief object of courts of justice must be to ensure that justice is done and, accordingly, courts will not sit in public if to sit in public would destroy the subject matter of the dispute.

Debelle J also considered the statutory requirements of open justice in reaching his decision set out in section 46A of the Supreme Court Act 1935 No. 2253 (SA) which provides that: "Subject to any provision of an Act or any rule to the contrary, the court's proceedings must be open to the public". Debelle J found that section 69 of the Evidence Act 1929 No. 1907 (SA) and rules of court qualify the operation of section 49A of the Supreme Court Act 1935 No. 2253 (SA), but that the power to close the court will be exercised very sparingly.

In his reasons for referring the application to a judge, the Master noted that, with one exception, the practice of placing documents and exhibits in sealed envelopes at the request of liquidators is not authorised by any rule of court or by any considered judicial decision. The exception referred to is Rule 11.3 of the Corporations Rules which the Master found had no operation on the application. Debelle J found that the Master had failed to take into account the full extent of the inherent power of the court to control its proceedings and in particular, section 69A of the Evidence Act 1929 No. 1907 (SA). Debelle J noted that where a court orders that proceedings be heard in closed court, that order would be frustrated if steps were not taken to preserve the confidentiality of confidential documents tendered at those proceedings.

Debelle J found that section 69A(2)(b) of the Evidence Act 1929 No. 1907 (SA) will not prevent an order sealing up documents where it is determined that the public disclosure of those documents would defeat the interests of justice. Implicit in a decision to seal documents is that there are special circumstances that give rise to a sufficiently serious threat of prejudice to the proper administration of justice as to warrant the documents being sealed up.

In reaching a decision to hear the application in a closed court and permit the confidential documents to be sealed, Debelle J stated that this was a clear case where disclosure of the documents and the circumstances leading to it would defeat the agreement itself to the clear prejudice of the preference shareholders.

(ii) Approval of the compromise

In order to maintain the confidential nature of the transaction, Debelle J provided scant details in respect of the compromise in his decision.

Debelle J found that it was appropriate for the court to grant approval to the compromise notwithstanding that the transaction could operate for a period of years. In reaching this decision, Debelle J noted that the ongoing agreement would not create any burden for the company because neither the company nor the liquidator would incur any cost.

(By Andrew Healer, Freehills)

Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board; Gould v Magarey [2007] HCA 23, High Court of Australia, Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 24 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/high/2007/may/2007hca23.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

The Companies Auditors and Liquidators Disciplinary Board ('the Board') suspended the registration of two liquidators. The liquidators challenged the decision of the Board on the ground that it was an exercise of judicial power contrary to the Constitution. Chapter III of the Constitution requires that the judicial power of the Commonwealth must only be exercised by a properly constituted court. The court held that the Board's decision was valid as, taking into account functional and historical considerations, there had been no exercise of judicial power.

(b) Facts

Richard Albarran and Vanda Russel Gould ('the appellants') were both liquidators registered under the Corporations Act 2001 No. 50 (Cth). The respondents are members of the Companies Auditors and Liquidators Disciplinary Board. The Board has functions and powers conferred on it by sections 204 and 261 of the Australian Securities and Investments Commission Act 2001 No. 51 (Cth) and the Corporations Act.

Section 1292 of the Corporations Act vests power in the Board to suspend or cancel the registration of liquidators in stipulated circumstances. On the application of ASIC, the Board had made orders suspending the registration as liquidators of both appellants for failing to perform their duties adequately and properly.

The Full Federal Court jointly heard argument in each proceeding that the power conferred on the Board by section 1292(2) involves the exercise of the judicial power of the Commonwealth. The Full Federal Court rejected the submissions that section 1292(2) is an attempt by Parliament to confer such judicial power on a body other than a court.

(c) Decision

The High Court unanimously rejected the appeal. In determining whether there had been a conferral of judicial power on the Board, their Honours considered the past decisions of the court in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, where Isaacs J held that judicial power is power incapable of being exercised by another branch of government; and R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, where Kitto J held that judicial power involves determining a dispute between parties as to the existence of a legal right or obligation and then applying the law to the facts.

(i) No determination of guilt and no punishment

The Board had made no determination as to whether the Appellants had committed an offence under the Corporations Act. Their Honours construed the words "adequately" and "properly" as they appear in section 1292 as not being directed to a legal standard but toward the commercial and practical standard of professional liquidators. This interpretation is supported by the requirement in section 203 of the ASIC Act that the composition of the Board includes members nominated by professional accounting bodies.

In a separate judgment concurring with the majority's reasoning, Kirby J found that an analysis of corporations law in Australia revealed the desirability of upholding the standards of liquidators for the protection of shareholders. This purpose is best served by the Board, which has experience and insight into the work of liquidation, as opposed to a generalist court.

(ii) Historical considerations

The Appellants relied on precedent showing the control of liquidators historically undertaken by the Court of Chancery (R v Davison (1954) 90 CLR 353; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361). However, their Honours rejected this interpretation of the case law. They held that historical considerations did not show that courts had had a general role in exercising functions of a disciplinary nature such as those undertaken by the Board in Australia. They also observed that in England the Board of Trade had been given significant powers to supervise liquidators prior to the adoption of the Australian Constitution.

(iii) Laws of domestic and general application

The Appellants proposed a distinction, for constitutional purposes, between laws of domestic and general application. It was submitted that disciplinary arrangements in domestic areas, such as the determination of a university visitor in England (as in R v Lord President of the Privy Council; Ex parte Page [1993] AC 682) would not engage the judicial power of the Commonwealth, whereas those determinations relying on the application of general law, such as corporations law, would involve the exercise of judicial power.

The court rejected this reasoning on the grounds that the proceedings were not of a punitive nature, and it was also unclear if the archaic distinction proposed had any relevance to Australian law.

(By Christine Huynh, Mallesons Stephen Jaques)

Visnic v Australian Securities and Investments Commission [2007] HCA 24, High Court of Australia, Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ, 24 May 2007

The full text of the judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/high/2007/may/2007hca24.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

In an important decision concerning ASIC's powers, the High Court dismissed a challenge to ASIC's power under section 206F of the Corporations Act 2001 No. 50 (Cth) to disqualify persons from managing a corporation. Section 206F allows ASIC to determine whether to disqualify a person from managing a corporation by reference to criteria, which include public interest. The court unanimously held that as considerations of policy are important in a decision made under section 206F, the power given to ASIC is not an exercise of judicial power and therefore does not contravene section 71 of the Constitution (which reserves federal judicial power to Chapter III courts).

(b) Facts

In late January 2006, ASIC disqualified the plaintiff from managing a corporation without leave of ASIC for five years. Under section 206F, ASIC is able to ban a company director if they are the director of two or more failed companies that are wound up and a liquidator had lodged a report under section 533(1) of the Corporations Act 2001 No. 50 (Cth) concerning the ability of the corporation to pay its debts. ASIC claimed that the plaintiff, in failing to maintain adequate financial records and ensuring the companies did not trade while insolvent, had failed to exercise his powers and duties as a director of the companies with reasonable care and due diligence.

The plaintiff claimed that there was a breach of section 71 of the Constitution which stipulates that the judicial power of the Commonwealth is vested in a Chapter III court and not a legislative or executive officer, body or tribunal. The plaintiff argued that the power to disqualify persons from managing a corporation is only available to a Chapter III court, and ASIC not being one, made section 206F constitutionally invalid.

(c) Decision

(i) Central issue to be determined

The central issue was whether section 206F purported to confer upon ASIC a function pertaining exclusively to the judicial power of the Commonwealth. If the legislation did, then it would be invalid as ASIC is not a court identified under Chapter III of the Constitution.

(ii) Joint judgment

The plaintiff argued that, given the presence of Part 2D.6 of the Corporations Act 2001 No. 50 (Cth) which confers disqualification by section 206C, 206D and 206E on a court, parliament could not under section 206F also vest judicial power in an administrative body. This submission was rejected because it conflicted with the decision made in R v Quinn; Ex parte Consolidated Foods Corporation where the court held that section 23(1) of the Trade Marks Act 1995 No. 119 (Cth) validly conferred authority on both the court and the Registrar of Trade Marks. Moreover, the criteria stipulated for the exercise of power by ASIC and the courts differ to a significant degree.

In a joint judgment, Gleeson CJ, Gummow J, Hayne J, Callinan J and Crennan J accepted the argument that section 206F confers on ASIC a power to be exercised for the purpose of maintaining professional standards in the public interest and that there is therefore nothing inherently judicial in that power. The Court relied on the decision of the High Court in Precision Data Holdings Ltd where the court held that "where as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case, is entrusted with the exercise of judicial power". The court held that this was sufficiently determinative to find that section 206F empowers ASIC to determine whether a person can manage corporations and to decide that question by reference to criteria including the public interest.

(iii) Kirby J judgment

Kirby J agreed that the legislation was valid but focused on the disciplinary character of the powers conferred on ASIC by section 206F. This was contrasted with the more open ended powers conferred by the Corporations Act 2001 No. 50 (Cth) on the court. Further, ASIC's rights could not be characterised as determining basic legal rights which must be reserved to Chapter III courts. Therefore, the regulation of officers under section 206F was constitutionally valid even though some sections (eg sections 206C, 206D and 206E) only confer powers on Chapter III courts. His Honour held that the functions conferred by section 206F are not of such a kind that they can only be vested in the courts.

Interestingly, Kirby J noted that recently the Commonwealth had a clear tendency to approach every appeal to the separation of powers doctrine by using the "double aspect" or "chameleon principle". While he acknowledged that he had in the past accepted the principle, he cautioned against taking the principle too far and destroying the important objectives of the separation of powers doctrine.

(iv) Conclusion

The High Court unanimously dismissed the appeal.

(By Peter Sise, Clayton Utz)

Malhotra v Tiwari [2007] VSCA 101, Court of Appeal of the Supreme Court of Victoria, Chernov, Nettle and Redlich JJA, 23 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/vic/2007/may/2007vsca101.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This case involved an application to have the administrators of a company deprived of their administrators' fees. It was alleged that the administrators had misconducted themselves and were biased towards certain interested parties. The Court of Appeal found that the administrators were entitled to their fees. To be deprived of their fees, the administrators would have had to misconduct themselves to the extent that they should have been removed as administrators. The Court of Appeal did, however, refuse to allow the administrators to act as liquidators of the company. There were shortcomings with the administrators' actions which may need to be investigated by a liquidator. The same persons, who acted as administrators, could not be allowed to investigate their own actions now as liquidators as it is "axiomatic" that administrators cannot investigate themselves.

(b) Facts

This appeal concerned the administration of a family business that undertook the importing, wholesaling and retailing of Indian groceries (the "Company"). The facts of this case are lengthy and revolve around an ongoing dispute following a divorce. The Court of Appeal remarked that this case was as much a post-nuptial conflict as a commercial contest.

The appellant was a former director of the Company. The second respondents were the administrators of the Company ("Administrators"). The first respondents consisted of the appellant's ex-wife and her son from a former marriage to another previous director of the Company ("Tiwaris"). The Tiwaris were directors of the Company.

The Administrators of the Company had decided to place the Company into voluntary liquidation and become the liquidators. The appellant was particularly aggrieved by the decision of the Administrators to allow the Tiwaris to continue to manage the Company during the administration and not himself. The appellant was concerned with the propriety of the Tiwaris as managers of the Company.

At trial, the appellant argued that the Administrators had:

The trial judge found that the Administrators were entitled to their fees and should not be removed as liquidators. The appellant appealed against this decision.

(c) Decision

Before the Court of Appeal, the appellant argued that the trial judge erred in his findings that the various alleged acts of misconduct by the Administrators were not made out or were not such as to warrant depriving them of their fees. The appellant argued that the trial judge failed to consider evidence or his decision was against the weight of evidence.

(i) Alleged misconduct and bias of the Administrators

In a unanimous judgment, the Court of Appeal dismissed the appellant's arguments regarding misconduct and bias. Their Honours concluded that the trial judge had taken into account the material which the appellant had submitted and had reached a conclusion that was logically based on that material.

The court of Appeal stated that the Administrators would be deprived of all their fees if they had so misconducted themselves that they should have been removed as administrators. Their Honours acknowledged that there were some "significant shortcomings" in the administrators' supervision of the Company, but were not convinced that these were so great that they should have been removed and hence deprived of all their fees. These "shortcomings" were that the Administrators had inaccurately recorded the work they had carried out during the administration and possibly authorised payments which were suspicious and in need of further investigation.

The Court of Appeal agreed with the judge that the Administrators were not biased as they were "far more concerned to maintain corporate peace and achieve a deed of company arrangement than to prefer one side over the other". If the Administrators did make a decision which favoured one side over another, this was justified because the Administrators believed that the interests of the Company were more closely aligned with that particular side.

(ii) Removal of the Administrators

The Court of Appeal allowed the appeal in part, ordering that the Administrators be removed and replaced as the liquidators of the Company. Their Honours agreed with the trial judge that further investigation into the Company needed to be carried out by a liquidator. The Court of Appeal thought it was inappropriate for the Administrators to carry out these further investigations, now as the liquidators, given the shortcomings of their administration. The Court of Appeal stressed that they had not come to any conclusion adverse to the Administrators as this would be inappropriate without first allowing the Company to be heard through an independent representative. The Court of Appeal was concerned that the Administrators may have to investigate their own conduct now as the liquidators. In regard to this, their Honours said:

"[I]t is axiomatic that the administrators cannot investigate themselves. The consequent possibility of a conflict of interest necessitates that an independent liquidator be appointed in their place."

(iii) Derivative action

The appellant also appealed against the trial judge's decision to refuse him leave to bring a derivative action on behalf of the Company against the Tiwaris. The Court of Appeal refused leave to the appellant saying that ordinarily it is inappropriate to allow derivative proceedings to be brought when a company is in liquidation because it would require the court to permit another to supplant the liquidator as the personification of the company for the purpose of investigating the behaviour of former directors.

(by Lisa Thomas, DLA Phillips Fox)

Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 466, Supreme Court of New South Wales, Barrett J, 11 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/may/2007nswsc466.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This case concerned an interlocutory application for the setting aside of an earlier Court order reinstating the registration of a company, Churnwood Holdings Pty Limited (in liquidation) ("Churnwood").

It was argued by Miltonbrook Pty Limited, Miltonbrook Land Pty Limited and Embrook Pty Limited ("the Applicants") that not all of the relevant facts were presented to the Court when the reinstatement order was made, and further, that the Applicants had a right to be heard. However, the Applicants' solicitor was in attendance when the orders were made, but neglected to make an oral submission at the time.

It was found that the Australian Securities and Investments Commission ("ASIC") had properly reinstated Churnwood under the Corporations Act 2001 No. 50 (Cth), and Barrett J considered whether there was any utility in the reinstatement orders being set aside.

The Application was dismissed by his Honour, finding that any order setting aside reinstatement would be futile as it would not create a statutory obligation for the removal or alteration of the entry made by ASIC.

(b) Facts

(i) Contextual background

On 11 January 1996, Churnwood became a party to two deeds and in each case, the other parties named in the deeds were Miltonbrook Pty Limited and Embrook Pty Limited. Each of Miltonbrook Pty Limited and Embrook Pty Limited granted to Churnwood or its nominee, an option to buy particular property ("the options"). Churnwood commenced winding up and on 30 July 2004 (before deregistration) a director of Churnwood caused Churnwood to nominate Westbury Holdings Kiama Pty Ltd ("Westbury") to exercise each option. Following completion of voluntary winding up, ASIC deregistered Churnwood on 29 January 2005 pursuant to section 509(5) of the Corporations Act 2001 No. 50 (Cth). On 13 October 2006, the options were then exercised and documents executed by the then non-existent Churnwood.

On 6 December 2006, Westbury's solicitor's issued a draft statement of claim to the solicitors of Miltonbrook Pty Limited and Embrook Pty Limited, in which Westbury and Churnwood were named as plaintiffs. The draft included claims for declaratory relief to the effect that the options had been lawfully exercised by Churnwood, as well as seeking consequential relief through specific performance (the day after ASIC re-registered Churnwood (15 March 2007), Westbury and Churnwood filed a statement of claim as foreshadowed by this draft statement).

(ii) Application and order to reinstate registration of Churnwood, and application to set order aside

Proceedings were then brought by Westbury before the court on 12 February 2007, which were stood over until 26 February 2007, seeking an order to terminate the winding up of Churnwood. An additional plaintiff, Mr Fitzgerald, who was the former Liquidator of the company, was added to the proceedings at that stage. The proceedings were again stood over until 5 March 2007.

On 5 March 2007, Counsel for the Plaintiffs appeared, and there were no other appearances, despite counsel for the Applicants being present at the proceeding. The evidence principally consisted of an affidavit in support of the reinstatement of Churnwood by a Mr Terry Gallager, who was the sole director and shareholder of Churnwood, as well as director of Westbury. The evidence given by Mr Gallager supporting Westbury's application for reinstatement was as follows: " A dispute has arisen between Miltonbrook Pty Limited, Embrook Holdings Pty Limited and Westbury Holdings Kiama Pty Limited in respect of the proper or due exercise of the options by Westbury Holdings".

At the conclusion of the 5 March 2007 hearing, the following three orders were then made by the court:

On 14 March 2007, ASIC reinstated the registration of Churnwood and recorded that the company ceased to be in liquidation. However, on the same day, the Applicants by interlocutory process sought an order to set aside and discharge the order made on 5 March 2007. The Applicants argued that the order made by the court directing ASIC to reinstate the registration of Churnwood, should be set aside by reason of the following:

(c) Decision

(i) The question of whether Westbury was a "person aggrieved"

Section 601AH(2) of the Corporations Act 2001 No. 50 (Cth) allows a court to make an order that ASIC reinstate the registration of a company if:

Barrett J found that as Mr Fitzgerald (former liquidator of Churnwood) had joined proceedings as an additional plaintiff by the time the order directing reinstatement was made on 5 March 2007, section 601AH(2)(a) was satisfied. Therefore, the issue whether or not Westbury was a "person aggrieved" was redundant, because Mr Fitzgerald was a "person aggrieved" under section 601AH(2)(a)(ii).

(ii) The issue of material facts not being disclosed to the court and consequently, the Applicants being denied an opportunity to be heard

It was found by his Honour that information given in Mr Gallager's affidavit in support of Westbury's application to the court for re-instatement of Churnwood, was an "incomplete description of the position". His Honour said that the court was not told of the threatened litigation (Westbury and Churnwood's draft statement of claim) which to his Honour's mind gave the Applicants an interest in the matter far more serious than suggested by Mr Gallager's reference to "disputes" in his affidavit.

As well as considering relevant case law, Barrett J considered whether the order should be set aside on the basis of rule 36.15 of the Uniform Civil Procedure Rules 2005, which states that a judgment be set aside by the court if the judgment was given or entered into or was made irregularly, illegally or against good faith.

His Honour concluded that the Applicants (or at least Miltonbrook Pty Limited and Embrook Pty Limited, who were named in the draft statement of claim), were entitled to an opportunity to be heard regarding Westbury's application for an order re-instating Churnwood under section 601AH(2) of the Act. His Honour came to this conclusion on the basis that "they were persons with a clear and direct interest in the matter and therefore beneficiaries, in the particular context, of the audi alteram partem rule. Denial of an opportunity to be heard would be irregular in the sense relevant to the operation of rule 36.15(1)".

However, the Applicants' solicitor had knowledge of the plaintiff's court application for reinstatement of Churnwood (although by chance) and attended the proceedings in court on 5 March 2007. The Applicants' solicitor made no oral application that day for the Applicants to intervene or to be heard in order to bring to the court's attention to their interest in the matter. For this reason, his Honour found that the Applicants had an opportunity to be heard, even though the opportunity was not actively presented by the Plaintiffs.

Barrett J also found that by reason of the plaintiff's deficient disclosure in their ex parte application for reinstatement of Churnwood, there may be grounds for setting aside the orders of 5 March 2007, pursuant to rule 36.15(1). However, his Honour found that even if the orders were to be set aside under rule 36.15(1), it must be considered whether there would be any utility in doing so.

(iii) No utility in setting aside the order

Barrett J found that setting aside of the court's order which gave ASIC statutory authority to reinstate the registration of Churnwood, would not change the fact that ASIC had reinstated the registration of Churnwood. In support of this finding, his Honour cited the principle established in Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at p 225: "Acts done according to the exigency of a judicial order afterwards reversed are protected: they are 'acts done in the execution of justice, which are compulsive". Further, his Honour stated that ASIC's reinstatement of the registration of Churnwood validly and regularly complied with ASIC's obligations under the court order of 5 March 2007 and section 601AH(2) of the Act. The existence of Churnwood was found to in no way depend on the continued force of the court's order, and could only be brought to an end by a new intervention by statute.

Barrett J further considered whether section 1322(4)(b) of the Act could apply, which allows the court to make an order directing ASIC to rectify any register kept by ASIC. His Honour stated that this section does not allow the court to order anything above the steps required to ensure that a register of ASIC is kept in accordance with the statutory provisions applicable to it. As it was found that ASIC's entry was made regularly and validly in accordance with the court's order, his Honour decided that there was nothing in need of rectification and therefore, section 1322(4)(b) could not apply.

For these reasons, Barrett J concluded that an order setting aside the orders made on 5 March 2007, would have no meaningful effect and therefore dismissed the interlocutory process filed by the Applications on 14 March 2007 to set aside the orders made on 5 March 2007.

(By Rebecca Kovacs, DLA Phillips Fox)

Silver v Dome Resources NL [2007] NSWSC 455, New South Wales Supreme Court, Hamilton J, 9 May 2007

The full text of this judgement is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/may/2007nswsc455.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This case concerned whether a former director of a company ('Mr Silver') could obtain payment of benefits under a retirement deed executed by a company ('Dome') and guaranteed by its holding company ('DRD').
Hamilton J held that:

(b) Facts

Mr Silver had a long and complicated relationship with Dome which originally began when he agreed to act as a consultant to the company in 1993. At this time Mr Silver was a director of a Goldspark Pty Limited ('Goldspark') and it was through this company that he provided consultant services to Dome. Mr Silver issued invoices to Dome on behalf of Goldspark and then accessed those funds to receive payment for his services.

In 1998 Mr Silver was appointed a director of Dome. Some time after this appointment, the Executive Chairman of Dome told Mr Silver that he was intending to propose that the board approve an agreement where all executive directors receive a retirement benefit.

Mr Silver was then told by another director that all directors fees paid to him as well as all payments made to Goldspark for his services for the three years prior to his retirement would be taken into account in calculating his retirement benefit.

A retirement deed was approved and executed by the board on 31 May 1999. It provided that upon the retirement of Mr Silver, Dome would pay Goldspark Mr Silver's total 'emoluments' for the period of three years prior to his retirement.

Mr Silver stated that he only remained a director of Dome in reliance on his understanding of his retirement entitlements under the deed. This understanding was based on his previous discussions with the directors of Dome.

In November 1999 Mr Silver and his business partner sold Goldspark and created a new company called Fair Choice through which he continued his consultancy services on the same basis as he had done previously with Goldspark.

Shortly after this time, Mr Silver agreed to become a non executive director of Dome on the basis that his retirement deed would be altered so that he would still receive his retirement benefit when he retired as a non executive director and that the money would be paid to Fair Choice (rather than Goldspark). The board passed a resolution approving a retirement variation deed which provided for these amendments on 9 May 2000. The retirement variation deed was executed by Dome and by its holding company (DRD) who agreed to guarantee Dome's obligations.

On 25 August 2000 Mr Silver resigned as a director of Dome. Despite initial statements from both Dome and DRD indicating that they would be willing to pay out the benefit to Fair Choice under the varied retirement deed, both companies subsequently refused to make any payments.

(c) Decision

(i) Execution of retirement variation deed was authorised

Hamilton J rejected Dome's argument that it was not authorised to execute the retirement deed and the retirement variation deed. He held that there was a resolution passed by the board authorising the execution of the deed as this was clearly recorded in a minute of the directors' meeting which took place on 9 May 2000.

Dome also argued on the basis of Ormiston J's decision in Sali v SPC Ltd (1991) 9 ACLC 1511 that boards of directors do not usually have the power to enter into any agreements for the provision of retirement benefits to members of the board.
Hamilton J rejected this proposition on the basis that Dome's constitution provided the directors with the requisite power to fix remuneration for executive directors, including if thought fit, retirement benefits.

(ii) The retirement variation deed was not prohibited by law

Section 200B of the Corporations Act 2001 No. 50 (Cth) (the Act) states that a company cannot give a person a benefit in connection with the person's retirement from a board without member approval. Dome argued that this provision rendered both the payment of the agreed benefit and the agreement to make the payment contained in the retirement variation deed illegal.

Hamilton J held that section 200B of the Act only prohibits payment of the benefit without member's approval, and is not a prohibition on the contract being entered into by the parties. His Honour held that in this case member approval was not required as the payment was for past services that Mr Silver rendered to Dome and therefore the statutory exception outlined in section 200G(1)(b) applied.

(iii) Available remedies

As the promise of payment contained in the retirement variation deed was made to Mr Silver, but the benefit was actually to be paid to Fair Choice, neither party could receive judgment at law for the promised amount. Mr Silver was not entitled to payment under the deed and Fair Choice was not a party to the contract.

Hamilton J did however conclude that Mr Silver, as a party to the contract, was entitled to specific performance of Dome's promise of payment to Fair Choice, even though Fair Choice was not a party to the contract.

Hamilton J rejected Dome's argument that the deed could not be specifically enforced as there was a lack of consideration. He maintained that Mr Silver's continued service to Dome was valuable consideration for Dome's promises made in the varied retirement deed.

Finally, having found that Dome's payment obligations were valid and enforceable, his Honour declined to determine the claim that the defendants were estopped from denying the validity of those obligations, and formed the view that it would be difficult for the plaintiffs to obtain meaningful relief under the Trade Practices Act 1974 No. 51(Cth).

(By Rebecca Young, Blake Dawson Waldron)

Stylis v United Medical Protection Ltd [2007] NSWCA 109, New South Wales Court of Appeal, McColl J, Basten JA and Young CJ in Eq, 8 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/may/2007nswca109.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This decision involved the interpretation of a clause in a company constitution which limited the evidential matters which had to be proven before a member could be liable for a call. The Constitution provided that any person on the register of members could be potentially liable. The lower courts found Dr Stylis liable for a call even though he had ceased to be a member of the company and incorrectly remained on the register. The Court of Appeal found that the clause did not absolve the company from having to prove that a person was actually a member at the time of the call. Dr Stylis could not be liable for a call made when he was no longer a member of the company. This result was mandated by the context and purpose of the relevant provision, as well as a desire to retain consistency with other law in relation to the conclusiveness of registers of members.

(b) Facts

Doctor Stylis was a member of United Medical Protection Ltd (UMP), a medical professional indemnity insurance provider. He defaulted on payment of his subscription to UMP. The UMP Constitution provides that if a member defaults on a subscription payment and this default continues for one month after the payment becomes due, the member ceases to be a member unless the Board authorises otherwise (clause 20). The Board took no steps to prevent Dr Stylis' membership from cessation. The Magistrate found that Dr Stylis' default in payment had not been intentional and it could be inferred that both parties understood that Dr Stylis' membership was continuing through much of the year 2000. Accordingly, no steps were taken to remove Dr Stylis' name from the register of members. Nonetheless, Dr Stylis' membership of UMP ceased as of 16 May 2000.

On 17 November 2000, the UMP Board resolved to make a call for money on ordinary members. Clause 28 of the Constitution provides that, in the event of a call being made upon members:

UMP brought proceedings against Dr Stylis to recover the amount of the call, relying on clause 28. Dr Stylis' name was still on the register of members, a resolution requiring payment of the call was recorded and notice requiring payment was given to Dr Stylis. UMP claimed this was all that was required before Dr Stylis was liable for the call. UMP succeeded before the Magistrate and Harrison AsJ of the New South Wales Supreme Court. Both courts found that, although the operation of clause 20 meant that Dr Stylis' membership ceased on 16 May 2000, he could still be liable for the call because the conclusive evidential requirements set out in clause 28 were satisfied.

Dr Stylis appealed to the New South Wales Court of Appeal.

(c) Decision

All three judges of the Court of Appeal overturned the lower Court decision. For a variety of reasons, clause 28 could not be interpreted to allow a call to be made on someone who had ceased to be an ordinary member.

(i) The contextual approach

Clause 28 had to be read in the context of the entire Constitution. McColl JA concluded that a variety of provisions discussing the liabilities and benefits of membership indicated that, prima facie, the Constitution only burdens members with responsibility for debts and liabilities incurred while they are members.

Basten JA noted that clause 28 should be interpreted in light of clause 27. Clause 27 is the clause which actually empowers the Board to make exceptional calls on ordinary members. Basten JA considered that clause 28 is effectively a procedural provision, whereas clause 27 is the provision conferring the power to make the call. In the event of inconsistency, clause 27 prevails. Accordingly, the power to make a call was constrained to operate in respect of ordinary members. The requirement in clause 28 that a person's name be entered on the register of members is therefore implicitly limited by the fact that a person on the register must actually be a member.

(ii) The purposive approach

McColl JA noted that the purpose of clause 28 is evidential. It is a provision to aid proof of UMP's entitlement to recover calls. Its purpose is not to enable UMP to impose liability for a call upon a person who is not a member. Even considering its purpose, clause 28 did not remove the necessity of demonstrating that a person whose name was entered on the register of members was a member. This interpretation gave the Constitution reasonable business efficacy, while avoiding unjust consequences (such as any person whose name was incorrectly on the register being potentially liable for a call).

Basten JA considered the intention of the call made by UMP. The amount of the call was equal to the subscription paid by each ordinary member in the 2000 calendar year. The terms of this resolution indicated that it was not a call intended to apply to former members.

(iii) The consistency approach

McColl JA also referred to the fact that the requirement to keep a register of members is derived from sections 168 and 169 of the Corporations Act 2001 No. 50 (Cth). Ordinarily, a register is proof of the matters shown in the register (section 176). Where there is an issue as to the accuracy of a register, other evidence can be taken into account in conjunction with what appears on the register (Sung Li Holdings Ltd v Medicom Finance Pty Ltd (1995) 13 ACLC 955). McColl JA thought it would be incongruous to accept a construction of clause 28 which would be contrary to the scheme for keeping and proving the contents of registers which has developed under the Corporations Act 2001 No. 50 (Cth). Consistency with other law requires that it be possible to prove, for the purpose of clause 28, that the register was incorrect.

(iv) Other observations

Other concerns and observations made by the judges included:

Dr Stylis, therefore, was not liable for a call after he had ceased to become a member, despite the fact that his name was still on the register of members. While clause 28 could limit the evidential matters which UMP had to prove before they could sue a member for a call, this was limited by the fact that calls could only be made against members.

(By Kathryn Finlayson, Minter Ellison)

Brereton v Australian Securities and Investments Commission [2007] FCA 651, Federal Court of Australia, Finkelstein J, 4 May 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2007/may/2007fca651.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

A person will be a 'person aggrieved' for the purposes of an application for reinstatement of a company's registration under section 601AH(2) of the Corporations Act 2001 No. 50 (Cth) if they:

(b) Facts

Mr Brereton was the only director of FTV Tweed Finance Pty Ltd. The company did not pay its review fees within 12 months of the date for payment and was deregistered. Mr Brereton made an application for the reinstatement of FTV Tweed Finance Pty Ltd's registration under section 601AH(2) of the Corporations Act 2001 No. 50 (Cth).

As an application under section 601AH(2) can only be made by a 'person aggrieved', Justice Finkelstein was required to determine whether Mr Brereton had standing to make the application.

Mr Brereton claimed that he was a 'person aggrieved' on four bases:

(c) Decision

Justice Finkelstein held that Mr Brereton was a 'person aggrieved' on two bases:

Accordingly, Justice Finkelstein ordered that the Australian Securities and Investments Commission reinstate FTV Tweed Finance Pty Ltd.

His Honour did not decide Mr Brereton's claim that he was a 'person aggrieved' by virtue of his position as a director of FTV Tweed Finance Pty Ltd at the time it was deregistered.

His Honour dismissed Mr Brereton's claim that he was a 'person aggrieved' on the basis that his company was the beneficial owner of all the shares in FTV Tweed Finance Pty Ltd. His Honour noted that, if this was able to be proven, it may give Mr Brereton's company standing but not Mr Brereton as an individual.

(By Stephen Magee, Clayton Utz)

Gamlestaden Fastigheter AB v Baltic Partners Ltd (Jersey) [2007] UKPC 26, The Lords of the Judicial Committee of the Privy Council, Lord Scott of Foscote, Lord Phillips of Worth Maltravers, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Mance, 25 April 2007

The full text of this judgment is available at:
http://www.bailii.org/uk/cases/UKPC/2007/26.html
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

A shareholder in a joint venture company had lent money to the company. The Privy Council held that the shareholder could bring an oppression action to recover damages on behalf of the company, even if the company was insolvent and the damages would benefit the shareholder in its capacity as creditor rather than as shareholder.

(b) Facts

Gamlestaden Fastigheter AB became a shareholder in a joint venture company with other persons, with the object of investing in commercial property. The business was conducted through a partnership. The JV company was one of the three members of the partnership. Gamlestaden's parent company made a large loan to the JV company for one of the property acquisitions.

In 1993, unknown to Gamlestaden, the directors of the JV company allegedly authorised the withdrawal of money from the partnership by the other two partners.

Gamlestaden began an oppression action against the JV company, under articles 141 and 143 of the Companies (Jersey) Law 1991. It claimed two types of relief:

By now, the JV company was insolvent. This meant that any award of damages would only benefit its creditors, rather than its shareholders. This meant that, should damages be awarded, Gamlestaden stood to benefit more as a creditor than as a shareholder.

The JV company argued that an oppression action cannot be taken by a shareholder unless the relief sought would be of some benefit to the shareholder in his capacity as a shareholder.

(c) Decision

The Privy Council held that, in the case of a joint venture company, a shareholder's remedies for oppression were not limited to those which would benefit them as a shareholder:

The Privy Council added that the benefit of the action had to accrue to the shareholder, rather than an unrelated third party. In this case, the loan had been provided by Gamlestaden's parent, rather than Gamlestaden itself. However, the Privy Council regarded this as a difference of form rather than of substance in the context of the joint venture as a whole.

In the course of its reasons, the Privy Council discussed two procedural matters:

(By Rory Maguire, Freehills)

APN News & Media Limited, in the matter of APN News & Media Limited [2007] FCA 770, Federal Court of Australia, Lindgren J, 20 April 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2007/april/2007fca770.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

Justice Lindgren examined an application under section 411(1) of the Corporations Act 2001 No. 50 (Cth) that a meeting be held to consider a proposed scheme of arrangement. Under the proposed scheme, the plaintiff agreed to certain lock-up devices including "no-shop" and "break fee" provisions.

Despite the amount of the break fee, his Honour found that neither of these provisions were in breach of any rules or would influence shareholder voting and made an order that a meeting be convened.

(b) Facts

The plaintiff, APN News & Media Limited, made an application to the Court that an order be made under section 411(1) convening a shareholders meeting for the consideration of a proposed scheme of arrangement.

Equity funding for the scheme was to be obtained from a consortium of investors and was conditional on a share sale to that consortium. Under this agreement, the plaintiff consented to both no-shop and break fee provisions. While the no-shop provisions were deemed to generally satisfy any concerns of the court (as previously outlined by Justice Santow in Re Arthur Yates & Co Ltd (2001) 36 ACSR 758), the break fee amount raised concerns regarding its possible influence on voting.

The Takeovers Panel's Guidance Note 7 stipulates that a break fee should not exceed 1% of the equity value of the target and this rule has been accepted by the courts in relation to schemes. In this instance, a break fee of $27.5 million was payable by the plaintiff to the consortium if the scheme did not proceed, which represented around 0.88% (depending upon which value was chosen for the denominator). The court considered whether the break fee might:

The scheme also provided for a deemed warranty that shares are free from encumbrances and that shareholders are entitled to transfer them.

(c) Decision

Justice Lindgren ruled that the break fee amount did not breach any of the Takeover Panel's rules as it was below the 1% threshold. However, his Honour recommended that future applications under section 411(1) be supported by evidence that no-shop and break fee provisions:

In addition, the deemed warranty was held to be no more than a device ensuring that scheme participants whose shares were subject to an encumbrance are not unfairly advantaged.

It was held that the court was therefore likely to approve the scheme and an order was made that the plaintiff convenes a meeting of shareholders to vote on the proposal.

(Peter Sise, Clayton Utz)

Scope Data Systems Pty Ltd v David Goman as Representative of the Partnership BDO Nelson Parkhill [2007] NSWSC 278, New South Wales Supreme Court, Justice White, 18 April 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/nsw/2007/april/2007nswsc278.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

A statutory demand was posted to the registered office of a debtor company (which was at its accountant's office). The demand was diverted to the accountant's PO Box due to an arrangement between the accountant and Australia Post. Under this arrangement, an employee of the company's accountant would retrieve the mail from the PO Box and deliver it to the company's registered office.

There was a dispute as to when service of the statutory demand had occurred.
Justice White reached the following conclusions.

Justice White doubted that the second of these propositions was correct as it is inconsistent with several authorities. His Honour, however, felt bound to follow it because it was stated by the NSW Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259. Justice White noted that the Court of Appeal was apparently not referred to several authorities, which were inconsistent with the conclusion, when deciding Falgat Constructions. Hence, outside of NSW, the second proposition might be not be accepted and the third proposition may apply even when the debtor diverts its own mail.

(b) Facts

David Goman (the "Creditor") sent a statutory demand to the address of the registered office of Scope Data Systems Pty Ltd (the "Debtor") on Monday, 25 September 2006. The Debtor's registered office was at the street address of the office of its accountant. The accountant had an arrangement with its local post office that any mail addressed to its street address would be placed in its PO Box. This meant that no mail addressed to the registered office would actually arrive there as it would be diverted to the PO Box by the post office. On the morning of each business day, an employee of the accountant would check the PO Box. The accountant retrieved the Creditor's statutory demand from the PO Box on the morning of Tuesday 3 October 2006 and took it to the Debtor's registered office. Monday, 2 October was a public holiday and the statutory demand was not in the PO Box on the morning of Friday, 29 September.

The Debtor responded to the statutory demand by filing an originating process and accompanying affidavit on 23 October 2006 seeking to have the statutory demand set aside. The Debtor then served the Creditor on 24 October. Section 459G(3) of the Corporations Act 2001 No. 50 (Cth) ("Corporations Act") requires an application to set the statutory demand aside to be filed and served within 21 days of the statutory demand being served on the debtor. If the statutory demand had been validly served on 3 October 2006, the application to set aside the statutory demand was filed and served (just) in time. If the statutory demand had been served prior to 3 October, the Debtor was out of time.

(c) Decision

(i) The relevant legislation

Section 109X(1)(a) of the Corporations Act states that a document may be served on a company by "leaving it at, or posting it to, the company's registered office". Section 29(1) of the Acts Interpretation Act 1901 No. 2 (Cth) states that when an Act authorizes a document to be served by post, service is taken to have occurred at the time the letter would have been delivered in the "ordinary course of post" unless the contrary is proven. Sub-section 29(2) states that section 29 does not affect the operation of section 160 of the Evidence Act 1995 No. 2 (Cth). Section 160(1) of the Evidence Act 1995 No. 2 (Cth) and the Evidence Act 1995 No. 25 (Cth) both state:

In light of these provisions, Justice White thought the position was as follows:

(ii) Where the statutory demand must be delivered

The statutory demand had to be delivered to the registered office of the Debtor. Delivery to the PO Box could not be equated with delivery to the Debtor's registered office.

(iii) When was the statutory demand delivered?

Justice White referred to the case of Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 ("Falgat"). In Falgat, it was held that a party does not prove that delivery occurred at its registered office at a different time to which it would have occurred in the ordinary course of post by showing that it reached a second address, to which it diverted its mail, at a different time to which it would supposedly reached its registered office in the ordinary course of post. His Honour thought that Falgat should be confined to the situation where the recipient had chosen itself to divert its mail to another address. Justice White thought that Falgat Constructions should be so confined because the NSW Court of Appeal had not been referred to some relevant authorities which pointed to a contrary conclusion.

The Debtor in the present scenario had its mail diverted by its accountants rather than itself. Justice White concluded that service did not occur until the statutory demand was taken to the registered office of the debtor after being retrieved from the PO Box. This occurred on 3 October. Hence the application by the Debtor was made in time.

(iv) Genuine offsetting claim

The Debtor submitted that it had an off setting claim under section 459H of the Corporations Act 2001 No. 50 (Cth) which should reduce the amount claimed in the statutory demand. The offsetting claim was a claim against the Creditor for the Debtor's legal costs in a proceeding. Justice White referred to Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743 which stated that a genuine offsetting claim is a claim made in good faith. Good faith requires the claim to be:

In the case of a claim for unliquidated damages for economic loss, the debtor must adduce some evidence to show the basis on which the loss arises and calculated. Justice White also referred to Elm Financial Services Pty Ltd v McDougall [2004] NSWSC 560 which stated that an off setting claim does not need to be particularised to the last dollar or cent.

Justice White accepted that the Debtor's off setting claim was genuine. His Honour stated that it is not a high hurdle to show that an off setting claim is genuine.

(By Justin Fox and Tony Mohorovic, Corrs Chambers Westgarth)

In the Application of United Medical Protection Limited [2007] Federal Court of Australia, FCA 631, Finklestein J, 19 March 2007

The full text of this judgment is available at:
http://cclsr.law.unimelb.edu.au/judgments/states/federal/2007/march/2007fca631.htm
or
http://cclsr.law.unimelb.edu.au/judgments/search/advcorp.asp

(a) Summary

This was an application to convene meetings of members to consider a scheme of arrangement proposed to be entered into by United Medical Protection Limited and The Medical Defence Association of Victoria Limited. The companies proposed to merge by way of scheme of arrangement into a newly incorporated company. Two issues arose in respect of determining the classes of members for the purposes of voting on the scheme.

The first issue concerned the possibility that some members would be required to pay higher insurance premiums if the scheme was approved. His Honour Justice Finkelstein was originally concerned that this may require the formation of two separate classes for the purposes of section 411.

The second issue related to differences in rights attaching to different categories of members of both companies. There were differences in the rights of members in both companies in relation to obligations to guarantee the debts of the company, liability to meet calls for contribution for funds and voting rights. His Honour was concerned that these differences may require the formation of further classes for the purposes of section 411.

On both issues his Honour held that there was only one class of member for the purposes of voting on the scheme. He found that rights of the members in each category were not so dissimilar as to make it impossible for them to consult together with a view to their common interest.

(b) Facts

The application concerned two companies limited by guarantee being United Medical Protection Limited (United) and The Medical Defence Association of Victoria Limited (MDAV). Through their subsidiaries, United and MDAV provided insurance services to their members who were mostly medical practitioners.

United and MDAV wished to merge through schemes of arrangement under the Corporations Act 2001 No. 50 (Cth). A new company was to be incorporated. Current members of United and MDAV would become members of the new company. United and MDAV would become subsidiaries of the new company.

Two issues arose in respect of determining classes for the purposes of voting on the scheme under section 411 of the Corporations Act 2001 No. 50 (Cth).

First, it was noted that if the schemes were adopted, some members and not others might be required to pay a higher premium for insurance. The question which arose was whether these members should vote in a separate class.

Second, a question arose as to whether different categories of members should vote in different classes.

United had two categories of members: ordinary members and affiliate members. An ordinary member was required to guarantee the obligations of United (to a nominal amount), was liable to make calls for contributions of funds up to an amount equal to the member's annual fee and was able to speak and vote at all meetings. In contrast, an affiliate member was not required to guarantee the obligations of United, was not liable to meet any calls for contribution of funds and had no right to vote.

MDAV had three categories of members: medical practitioners, companies that employ medical practitioners and students enrolled in a faculty of medicine.

The medical practitioners had similar rights to those of ordinary members of United. The companies and students had similar rights to affiliate members of United.

The issue was whether these different categories of member should constitute different classes for the purposes of section 411 of the Corporations Act 2001 No. 50 (Cth).

(c) Decision

Finkelstein J held that the fact that some members would pay higher premiums was not sufficient to form a separate class. The question to ask is whether the members 'rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest' citing the leading case of Sovereign Life Assurance Co v Dodd [1892] 2 QB 573.

His Honour found that although members might have different considerations which may influence them to vote differently on the proposed schemes, it does not necessarily follow that those members should be separated into different classes. To support this principle his Honour cited In the Matter of Chevron (Sydney) Ltd [1963] VR 249, Re Landmark Corporation Ltd (in liq) [1968] 1 NSWR 759 and Re Jax Marine Pty Ltd [1967] 1 NSWR 145.

His Honour further held (on a tentative basis) that the different classes of members in each of the scheme companies did not form a separate class. He stated that the question to be answered is whether the rights of the members who are to be bound by the schemes are so dissimilar as to make it impossible for them to consult together with a view to their common interest, on this occasion citing Re Hawk Insurance Co Ltd.

His Honour further noted that an overzealous subdivision may give a small group a right of veto that would defeat the basic object of the provisions dealing with schemes of arrangement which is to enable large groups to achieve a compromise or effect an arrangement, citing Nordic Bank Plc v International Harvester Australia Ltd [1983] 2 VR 298. On that test the court found that all categories of members should form the one class, notwithstanding the different rights attaching to each class of membership.

North American Catholic Educational Programming Foundation, Inc. v Gheewalla, Supreme Court of the State of Delaware, 18 May 2007

(By Jonathan Redwood, Barrister, Victorian Bar - List A)

The full text of this judgment is available at:
http://courts.delaware.gov/opinions/(nbvy0wjdzka5xj55yeyw1n55)/download.aspx?ID=92000

(a) Introduction

In a decision issued on 18 May 2007, the Delaware Supreme Court in North American Catholic Educational Programming Foundation, Inc. v Gheewalla held that creditors of a Delaware corporation may not assert direct claims for breach of a fiduciary duty owed by the corporation's directors to them when the corporation is insolvent or in the "zone of insolvency." While creditors of a corporation may bring derivative actions on behalf of a corporation when a corporation is insolvent for breach of fiduciary duties owed by the directors to the corporation, the Delaware Supreme Court emphatically rejected any expansion of directors' fiduciary duties to creditors. The Court reaffirmed one of the most basic principles of Delaware corporate law that directors owe their fiduciary obligations to the corporation and its shareholders and not its creditors. Endorsing a contractual theory of creditor protection, the Court concluded that creditors are afforded adequate protection through a combination of contractual arrangements (for example, restrictive indenture covenants and taking security interests), fraudulent transfer law, bankruptcy law and general commercial principles of good faith and fair dealing. Accordingly, there was no sound policy justification for departing from entrenched legal principle and extending directors' fiduciary duties to creditors. The decision may be contrasted with the more ambiguous position under Anglo-Australian law where courts have suggested that directors of a company may have a duty to take into account the interests of its creditors in appropriate circumstances.

(b) Background

The claim against the directors of Clearwire Holdings Inc. was brought by one of its creditors, the North American Catholic Educational Programming Foundation (NACEPF). The directors were all employed by Goldman Sachs and served on the Clearwire board of directors at the direction and under the control of Goldman Sachs. NACEPF alleged, among other things, that the directors knew but did not tell them that Goldman Sachs did not intend to carry out the business plan that was the stated rationale for NACEPF entering into a master agreement to create a national system of wireless connections to the internet. NACEPF contended that Clearwire was either insolvent or in the "zone of insolvency" at this time and the directors accordingly had a fiduciary duty to consider the interests of creditors, especially a substantial creditor such as NACEPF. This threw up for decisive legal resolution the question of whether Delaware law should recognize a new direct right for creditors to challenge directors' exercise of business judgments as breaches of fiduciary duties owed to creditors when a company is insolvent or in the zone of insolvency.

The Delaware courts had never authoritatively decided this question, although there had been suggestions in previous decisions of Delaware courts and decisions from other US-jurisdictions that such a duty may exist in certain circumstances. The notion of a shifting duty to creditors when a corporation is insolvent or in the zone of insolvency had also found some support in the academic literature which pointed to a variety of theories for such an extension of fiduciary duty law. The most commonly-offered rationale for creating a fiduciary duty to creditors upon a corporation's insolvency is the "trust-fund" doctrine. According to this theory, when a corporation becomes insolvent, its property is deemed the res of a trust, its directors are deemed trustees of the trust, and its creditors are deemed beneficiaries of the trust. Another theory for the shifting fiduciary to creditors is that during insolvency or on the cusp of insolvency, creditors' rights begin to resemble and converge with the rights of shareholders while the corporation is insolvent such that an exclusive focus on maximizing the corporation's value to equity holders creates a disproportionate and inequitable risk of loss to debt holders.

(c) Decision of Delaware Supreme Court

The Delaware Supreme Court agreed with the Court of Chancery below that in view of the existing legal protections afforded to creditors through fraudulent transfer law, bankruptcy law, general commercial law and the ability of creditors to negotiate agreements with strong contractual covenants and security interests, the imposition of an additional layer of protection for direct breach of a fiduciary duty owed to creditors was unnecessary and outweighed by the costs to economic efficiency that recognition of such a duty would likely impose on corporate decision-making.

The Court also considered itself compelled towards this conclusion by the need to provide directors "with clear signal beacons and brightly lined channel markers as they navigate with due care, good faith, a loyalty on behalf of a Delaware corporation and its shareholders" (quoting from Malone v. Brincat, 722 A. 2d 5, 10 (1998)). Recognizing that directors of an insolvent corporation owe direct fiduciary duties to creditors would, reasoned the Court, create uncertainty for directors who have a duty to exercise their business judgment in the best interests of the insolvent corporation. Accordingly, the Court laid down a bright-line rule that when a solvent corporation is navigating in the zone of insolvency, the focus of Delaware directors does not shift or change. Directors must continue to discharge their fiduciary duties to the corporation and its shareholders by exercising their business judgment in the best interests of the corporation and for the benefit of its shareholder owners.

The Court also rejected previous dicta of an earlier decision of the Court of Chancery (Production Resources Group LLC v. NCT Group, Inc., 863 A. 2d 772 (2004)) that there might exist circumstances in which directors of an actually insolvent corporation display such a marked degree of animus towards a particular creditor with a proven entitlement to payment that they give rise to a direct claim for breach of fiduciary duty to that creditor. The Court noted that while there may a basis for a direct claim arising out of contract or tort in that circumstance, the Court's holding is intended to completely preclude a direct claim arising out of a purported breach of fiduciary duty owed to the creditor by the directors of an insolvent corporation. The Court said that directors of insolvent corporations must retain the freedom to engage in "vigorous, good faith negotiations with individual creditors for the benefit of the corporation."

Derivative actions by creditors, however, were on a different footing. When a corporation is insolvent, its creditors take the place of the shareholders as the principal constituency and residual beneficiaries injured by any fiduciary breaches that diminish the value of the corporation. Equitable considerations, therefore, give creditors standing to bring derivative actions on behalf of the corporation for breach of fiduciary duties to the corporation when the corporation is insolvent.

(d) Observations

One of the hallmarks of Delaware corporate law jurisprudence is the recognition that pragmatic conduct-regulating legal norms to be applied by directors and the business community require "precise conceptual line-drawing." The clear guidance provided to directors in Clearwire is consistent with this theme. The decision is also based on a sound policy premise that the fiduciary duties of directors are directed towards the legal responsibility of directors to manage the business of a corporation for benefit of its shareholder owners.

As the court was at pains to emphasize, this does not leave creditors unfairly exposed and unprotected. Bankruptcy law, contractual provisions and general principles of commercial law, all combine to give creditors a broad spectrum of protections from decisions of directors that harm their interests. Finally, as a practical matter, the decision is likely to be of significance for directors of distressed and highly-leveraged companies when considering private equity and other bids. The decision makes it clear that in these circumstances the fiduciary duty of the director remains to act in the interests of the corporation and for the benefit of the shareholder owners.

Australian and English courts, by contrast, have been prepared to recognize that directors of a company may have a limited duty to take into account the interests of creditors in certain circumstances. In Clearwire the court emphasized that other protections afforded to creditors made it unnecessary to recognize a duty to take into account the interests of creditors, especially the protections afforded by fraudulent transfer law under section 548 of the Bankruptcy Code. Broadly speaking, under that provision transfers made by companies may be set aside in a bankruptcy if they were made at a time when (A) the company was insolvent at the time of the transfer (or made insolvent as a result of the transfer) or the property remaining in the hands of the company after the transfer was unreasonably small for the conduct of its business and (B) the transfer was made for less than reasonably equivalent value.

American courts interpret this provision expansively. There is no direct equivalent to section 548 of the Bankruptcy Code under Australian law. Unfair preference provisions, which apply separately under section 547 of the Bankruptcy Code in the US, serve related objectives but are conceptually different, and section 121 of the Bankruptcy Act 1966 No. 33 (Cth) concerning voidable transfers analogous to fraudulent transfer provisions under US law does not apply to companies. However, since 1993 transactions of a company may be set aside by a court if they are "uncommercial transactions" entered into when the company was insolvent (or which themselves cause the company to become insolvent) and they occurred within two years of insolvency (section 588FB(1) of the Corporations Act 2001 No. 50 (Cth)). "Uncommercial transactions" has been interpreted broadly and purposively by Australian courts thus far and arguably captures many of the types of transactions that would run afoul of section 548 of the Bankruptcy Code. Indeed, it may even operate more broadly. Moreover, the provision is also an additional source of personal liability under the insolvent trading provisions, which expose directors to personal liability for incurring a debt at a time when there were reasonable grounds for the director suspecting that the company was insolvent or would become insolvent by incurring the debt. The duty of directors to prevent insolvent trading has no counterpart under US law. Arguably, therefore, the protections afforded to creditors under Australian law are as strong, or stronger, than the protections under US law that the Delaware Supreme Court concluded militated against any extension of directors' fiduciary duties to creditors. Many of the Australian decisions recognizing a limited duty to creditors were decided before the introduction of the insolvent trading and uncommercial transaction provisions of the Corporations Act 2001 No. 50 (Cth) and Australian courts may be influenced by the reasoning of the Delaware Supreme Court when considering this issue again.

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