 |
|
: April 2003
|
|
,
Cornwall Stodart's first newsletter for 2003. Christmas has
come and gone and we are fast approaching Easter. The start
to the new year has already seen some significant new instructions
to the firm. These included:
-
Documenting a capital raising involving
a telephone company.
-
Negotiations (involving many millions
of dollars) with the Department of Employment & Workplace
Relations in connection with workers' GEERS entitlements.
-
A substantial property aquisition on
behalf of a major retail chain.
- Review of potential claims against those associated with
the fortune of a well known winery venture.
- A tax consolidation and evaluation of the merits of an
overall re-structure of a substantial construction company
- Industrial relations advice to a major sector player in
the printing and stationery market.
-
Advice to insolvency practitioners in
respect of the substantial termination entitlements of
employees subject to a certified agreement.
In February we farewelled Peter Agardy with
a cocktail function at the Victoria Club. The who's who of
the reconstruction and insolvency industry attended and wished
peter well in his move to the Bar. The evening offered clients
an opportunity to meet the Reconstruction and Insolvency team.
Some of the members of the team are profiled in this edition
of the newsletter.
The Young Business People's program followed up with another
successful event in February. An evening of lawn bowls was
held at the Melbourne Bowling Club. Individuals were able to
partake in an activity which we thought was only for the "young
at heart". The future talent for the International Bowling
Championship 2030 is looking good!
The Sydney office launched its Young Business People program
in March, with a wine tasting evening held at the Cornwall
Stodart office.
If you are interested in joining our program, please forward
your details to Young Business People at Cornwall Stodart; ybp@cornwalls.com.au
Stephen Newman, profiled in this
issue of Reflections, recently presented at an IES conference
on Due Dilligence. His topic was 'Establishing the right to
pre-acquisition - the due dilligence process and methodology'.
For further information contact Stephen
Newman.
On behalf of Cornwall Stodart, I wish you a prosperous and
successful 2003.
Michelle
McLean, CEO
CS Update
The firm is pleased to announce another
addition to its growing Workplace and
Relations group. Kerry O'Farrell has joined this team from
our Commercial Litigation group.
All of our Articled Clerks have been retained
and offered positions within our Dispute Resolution, Commercial
and Property groups. We have also welcomed three 2003 Articled
Clerks.
We are also pleased to announce the sponsorship
of the Premiership Strategies 2003 Sports Marketing Conference.
This conference will be held in Melbourne (the home of Australian
sport) on 1 May 2003 and will bring together leading practitioners
from the sports industry and marketing professions to provide
key insights on critical issues facing the owners of sports
properties and corporate sponsors. Presenters will include:
Rick Burton - Executive Director, James
H. Warsaw Sports Marketing Center.
Ben Buckley - General Manager (Commercial Operations) Australian Football
League.
Trevor Flett - Brand Strategy Director, FutureBrand Australia.
Carl Grebert - Brand Marketing Director, Nike Australia and New Zealand
(to name just a few).
If you require more information; contact Levent
Shevki or visit www.premiership.com.au.
Back to Top
|
|
|
|
John
Hutchings - Chairman
Apart from his responsibilities as Chairman
of the firm, John practises in a wide area of commercial and
corporate transactions and has significant expertise advising
on and documenting financial instruments, mergers and acquisitions,
shareholder and unitholder rights, commercial disputes and
corporate reconstructions.
With many years experience advising senior corporate management on complex
financial, transactional and management issues, John is widely regarded
as a strategic adviser.
John is a syndicate member of the CEO Institute and a member of the Insolvency
Practitioners Association of Australia. He holds a Bachelor of Laws from
the University of Melbourne.
Ph: +61 3 9608 2245 Email: j.hutchings@cornwalls.com.au
|
|
|
Stephen
Newman - Partner
Stephen deals with regulatory authorities
including the Australian Securities and Investment Commission,
the Australian Stock Exchange, and the Australian Consumer
and Competition Commission.
He is a member of the Law Council of Australia's specialist corporations
law committee. In 1991, the Law Institute of Victoria presented a Certificate
of Service to Stephen in recognition of his longstanding contribution
as a member and chair of various sections of the Institute.
Stephen holds a Bachelor of Economics, Bachelor of Laws and Masters of
Laws from Monash University.
Ph: +61 3 9608 2219 Email: s.newman@cornwalls.com.au
|
|
|
Peter
Macnish - Senior Associate
A senior associate in the firm's Commercial
Litigation group, Peter is skilled at providing commercial
advice to clients and his work involves conducting complex
litigation arising out of insolvencies, failed investments,
securities, construction disputes and wills and estates.
He has particular expertise in personal and corporate insolvency and
has acted for large manufacturers, statutory bodies, financial institutions,
registered trustees, corporations and individuals.
Peter holds a Bachelor of Laws from the University of Melbourne.
Ph: +61 3 9608 2229 Email: p.macnish@cornwalls.com.au
|
|
Back
to Top
|
| Tort
law reform package | Joe Naccarata |
In common with most transactions involving
a GST registered person, the sale of a business is generally
subject to GST unless the ‘supply of a going concern’ exemption
applies – in which case the sale will be GST-free.
Tort Law in Victoria is currently undergoing major statutory
change. The reform, collectively know as the Tort Law Reform
Package, is encompassed in three statutes:
(a) Wrongs & Other Acts (Public Liability
Insurance Reform) Act 2002;
(b) Limitation
of Actions (Amendment)
Act 2002; and
(c) Personal
Injuries Procedures
Bill (due to
be passed in
early 2003)
The following is a brief summary of the
most significant changes.
-
When determining
whether the occupier of premises is liable for the injury
of a person entering those premises, consideration will
be given to whether the person entering the premises is
affected by alcohol or drugs and whether they are engaging
in any illegal activity.
-
An apology does not
constitute an admission of liability. Similarly, if injury
or death results as a consequence of a service, a reduction
or waiver of fees for that service will not be an admission
of liability.
-
Caps are placed on
damages for loss of earnings (maximum of three times average
weekly earnings) and non-economic loss (maximum of $371,
380.00, to be varied annually).
-
The discount rate
used to calculate future economic loss is 5%, unless a
different amount is prescribed by regulation.
-
Good Samaritans,
food donors and volunteers engaged in community work are
not liable for acts performed in good faith.
-
A Court may make
an Order, with agreement by the parties, for the payment
of all or part of damages to be made periodically, funded
by an annuity.
-
Providers of recreational
activities are able to limit their liability towards customers
through their terms of sale.
The Act provides that an action for damages for personal
injuries may not be brought after the expiration of three
years from the date on which the cause of action accrued.
This reduces the limitation period from six to three years.
The new limitation period does not apply to the following:
-
Minors or persons suffering mental or
intellectual impairment;
-
Actions brought under the Accident Compensation
Act, Workers Compensation Act and Transport Accident Act;
and
-
Causes of action that accrued prior
to 5 November 2002.
This Bill aims to encourage settlement of claims for damages
for death or injury, by establishing pre-litigation procedures.
The pre-litigation procedures in the Act contain strict timeframes.
The result of this is that each party is obliged to develop
their respective positions within a short period of time.
Under these procedures the Claimant must, firstly, provide
the Respondent with a Notice of Claim which details the injury,
medical treatment received and damages claimed. This Notice
may only be provided once the claimant’s medical practitioner
reports that the injury is stabilised.
Once the Respondent responds to the Notice and joins any further Respondents,
there is a full exchange of documents and relevant information between
all parties. Parties must then attend and participate in a conference
to resolve the claim. Each party must make written offers at this conference.
These written offers will become significant in relation to costs,
if the matter goes to trial.
A Claimant will only be able to commence proceedings if a settlement
is not reached at the compulsory conference.
The following table outlines who is to bear legal costs
at trial, where the costs awarded are less than $50,000.00
and the pre-trial procedures have been followed:
Claimant awarded less than $30,000.00 Claimant awarded between $30,000.00
and $50,000.00
Amount awarded is equal to, or more than, the Claimant’s final
written offer at compulsory conference Claimant entitled to costs on
solicitor/client basis from day proceeding commenced Claimant entitled
to costs on solicitor/client basis from day proceeding commenced, and
up to $2,500.00 for costs prior to the proceeding.
Amount awarded is equal to, or less than, the Respondent’s final
written offer at compulsory conference Respondent entitled to costs
on party/party basis from day proceeding commenced Respondent entitled
to costs on party/party basis from day proceeding commenced, and up
to $2,500.00 for costs prior to the proceeding.
Amount awarded is less than Claimant’s final written
offer, but more than Respondent’s final written offer
at compulsory conference Each party to bear their own costs
Claimant entitled to a maximum of $2,500.00 for costs prior
to the proceeding. Otherwise each party to bear their own
costs.
The changes will to some extent make claimants more accountable
for their own actions and limit in certain circumstances
the amount of damages payable. The new claim procedures will
require claimants to outline their case at an early stage
and may, in view of the cost provisions, lead to smaller
claims not being pursued.
Eventually, the reform should result in a reduction in public liability
insurance premiums, however this is not likely to occur in the short
term.
Click
here for a PDF version of this article
Back to Top
|
|
|
The
High Court of Australia, in a 6:1 majority judgment, recently
dealt the ACCC another blow in its efforts to rely on section
46 Trade Practices Act 1974 as part of its enforcement armoury.
Section 46, in general terms, prohibits
corporations from taking advantage of their market power for
the purpose of engaging in “anti-competitive” conduct
against existing and prospective competitors.
The ACCC alleged that Boral Masonry Limited
breached section 46 in a number of respects in relation to
the supply of concrete masonry products in Melbourne between
April 1994 and October 1996.
The Trial Judge found against the ACCC
whilst the Full Federal Court found for the ACCC.
In reaching its conclusion the High Court
of Australia made the following important observations:
The point of price competition is to win
customers from a competitor. This conduct may damage or eliminate
a competitor. If in doing so, a corporation takes advantage
of a substantial degree of power in a market and for a proscribed
purpose, it will be in breach of section 46. Otherwise, the
conduct in question will amount to no more than lawful, vigorous,
competitive behaviour.
Financial strength or the financial ability
to survive a price war does not equate to market power if when
the price war is over, the market is still highly competitive.
Section 46 does not speak about “predatory
pricing” and is ill-equipped to deal comprehensively
with such allegations. Mere price cutting is not evidence of
market power.
Predatory pricing will breach section 46
where competitors are removed from the market and prices rise
to levels that allow those remaining to earn supra competitive
profits that enable them to recoup the losses sustained during
the price war.
It is dangerous to reason inferentially
from a finding that a corporation had the purpose of wanting
to eliminate or damage a competitor – Boral had stated
in internal documents that it was engaging in conduct to eliminate
competitors to hold on to or increase its market share – that
the corporation therefore must have, and be exercising, a substantial
degree of power in a market.
It now remains to be seen whether the Dawson
Inquiry into the Trade Practices Act 1974 makes any recommendations
which cut across the High Court’s loosening of the shackles
on what is acceptable competitive conduct.
|
|
|
