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commercial law, financial services reform and credit updates



Last Build Date: Sun, 15 Jun 2014 20:41:06 +0000

 



Are ASIC investigations of financial service providers private?

Sun, 15 Jun 2014 20:41:06 +0000

Are ASIC investigations of financial service providers private? Not automatically. In dealing with ASIC and other regulators it is important to understand that the Freedom of Information Act 1982 applies to government agency records and public disclosure is subject to the provisions of that Act. In Brighton-Stangstins and Australian Securities and Investments Commission [2014] AICmr 56 and American Express Australia Limited and Australian Securities and Investments Commission [2014] AICmr 57 the Privacy Commissioner considered whether an individual was entitled to access under the Freedom of Information Act 1982 to ASIC records of its investigation into American Express’ credit card interest […]

The post Are ASIC investigations of financial service providers private? appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




Small amount credit changes

Sun, 15 Jun 2014 20:40:46 +0000

The National Consumer Credit Protection Amendment (Small Amount Credit Contracts) Regulation 2014 was registered on 12 June 2014. The Regulation clarifies the changes introduced on 1 July 2013 which imposed a cap on costs and a limit on fees that credit providers (excluding ADI’s) can charge consumers for small amount credit contracts. A small amount credit contract provides credit of $2,000 or less for a term of at least 16 days but not longer than 1 year. The Regulation: clarifies that the small amount lending cap applies to loans of $2000 even if an additional amount is borrowed for an […]

The post Small amount credit changes appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




Can a special general meeting be adjourned?

Sun, 15 Jun 2014 20:40:17 +0000

In the matter of Re1 Limited (ABN 80 145 743 862) and Re2 Limited as responsible entities for Westfield Retail Trust 1 and Westfield Retail Trust 2 (No 3) [2014] NSWSC 762 the NSW Supreme Court considered the adjournment of the adjournment of the SGM of the Westfield Retail Trust relating to its restructuring. The chair adjourned the meeting of 29 May 2014 to a date to be fixed following disclosure of new information. Justice Brereton set out his considerations in approving the adjournment and the resumption and conduct of the adjourned meeting. “first, whether what is proposed will be […]

The post Can a special general meeting be adjourned? appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




The role of directors in financial reports

Sun, 15 Jun 2014 20:39:30 +0000

As we approach the end of the financial year ASIC has reminded directors that “Even though directors do not need to be accounting experts, they should challenge the accounting estimates and treatments applied in the financial report, seek explanations and seek appropriate professional advice supporting the accounting treatments chosen, particularly where a treatment doesn’t reflect their understanding of the substance of an arrangement.” Related post: ASIC v Healey (Centro) case note Further information can be found in ASIC Information Sheet 183 Directors and financial reporting (INFO 183) and ASIC Information Sheet 196 Audit quality: the role of directors and audit […]

The post The role of directors in financial reports appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




COSL clarifies non-enforcement rule

Mon, 09 Jun 2014 19:30:09 +0000

COSL has clarified its rule that a financial services provider subscriber must not commence or continue with enforcement action (including legal proceedings) once the consumer makes a complaint to COSL. if legal proceedings have already commenced, COSL’s view is that, rather than seeking repeated stays and adjournments, a FSP should discontinue legal proceedings, particularly where there is no clear indication that the complaint will be closed by COSL imminently. However the discontinuance may not be required if the consumer’s defence has advanced beyond lodging a defence or defence and counterclaim. COSL says: Depending on the stage of the proceedings and […]

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CAMAC review of the regulation of crowd sourced equity funding

Mon, 09 Jun 2014 19:29:45 +0000

CAMAC has published its review of the regulation of crowd sourced equity funding. CAMAC defines “crowd sourced equity funding” as follows: CSEF (alternatively described as ‘equity crowdfunding’ or ‘investment-based crowdfunding’) is a new and still evolving concept of corporate capital raising. Broadly, it contemplates a company (the issuer) seeking funds, particularly initial (‘seed’) or early-stage capital, by offering its equity to internet users (the crowd) in return for cash. Issuers would publish their equity offers through a website (sometimes referred to as an ‘online portal’ or a ‘funding portal’), the operator of which would serve as the intermediary between the […]

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Standard & Poors appeal dismissed

Mon, 09 Jun 2014 19:29:21 +0000

In ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65 the Federal Court of Australia Full Court rejected the appeal of ABN Amro, Standard & Poors ratings agency and the product seller against the trial decision to hold them liable for losses incurred by 13 local councils which purchased a structured financial product known as a constant proportion debt obligation or CPDO (discussed here). The findings of misleading and deceptive conduct were upheld as well as the conclusion that the product was a “derivative”.

The post Standard & Poors appeal dismissed appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




Renewal of registration on the AUSTRAC Remittance Sector Register

Mon, 09 Jun 2014 19:28:57 +0000

AUSTRAC has released draft AML/CTF Rules relating to the renewal of registration on the Remittance Sector Register. New Chapter 70 sets out procedures relating to the renewal of registration for 3 year periods. Amendments have also been made to Part 8.9 and Part 9.9 (relating to ‘Reporting Obligations’) requiring reporting entities to specify in their AML/CTF programs the reporting obligations they have in regard to the RSR and the Reporting Entities Roll.

The post Renewal of registration on the AUSTRAC Remittance Sector Register appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




Privacy, credit and AML

Wed, 04 Jun 2014 19:18:37 +0000

Last week I spoke at the Financial Institution Auditors’ conference about privacy issues for ADI’s. ADI’s, insurers and superannuation funds have a lot of personal information about customers and have extensive reporting obligations eg ATO, APRA, FCS, AML/CTF, unclaimed money. The previous speaker presented a case study about a mutual bank’s implementation of a single customer view as required by the Financial Claims Scheme and APS910. The implementation of a single customer view requires an approach to data management that satisfies regulatory reporting as well as an organisation’s own internal uses, customer requirements and contractual obligations. The Privacy Act and […]

The post Privacy, credit and AML appeared first on Bright Law | Legal and regulatory information and advice for Australian financial service providers.




Draft AUSTRAC rule: electronic safe harbour

Wed, 04 Jun 2014 19:10:18 +0000

AUSTRAC has published a draft Rule which amends the electronic safe harbour procedures for medium or lower risk individual customers in r4.12.13, to be consistent with the new electronic safe harbour procedures for beneficial owners in r4.12.7(4). New Rule 4.2.14 provides that a reporting entity which chooses electronic-based safe harbour verification instead of documentation-based verification for medium or lower risk individuals must verify the customer’s name and residential address using reliable and independent electronic data from at least two separate data sources and either (1) verify the customer’s date of birth using reliable and independent electronic data from at least […]

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