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The latest issue of the Australian Business Law Review (Volume 44 Part 6) contains the following material:

EDITORIAL

Articles

Retention of old titles: Pre-PPSA retention of title agreements and unfair preferences Chris Pearce

The Personal Property Securities Act 2009 (Cth) (PPSA) introduced significant and sweeping changes to the classic understanding of a “security interest”. Gone are the days of merely charges or liens; in their place is now an expanded concept of what can constitute a security interest. As the Act remains in its infancy, questions continue to arise as to its proper interpretation and operation. One such question that has come before the courts is the effect of pre-PPSA transactions – particularly retention of title agreements or Romalpa clauses – and their interaction with the unfair preference provisions of the Corporations Act 2001 (Cth). This article examines the two contrasting views reached by the Victorian Supreme Court in Blakeley v Yamaha Music Australia Pty Ltd and the Federal Court of Australia in Hussain v CSR Building Products Ltd. It discusses the approaches taken in each decision, while ultimately positing that the decision in Blakeley strikes the most appropriate balance between the changing role of PPSA security interests and the unfair preference provisions of the Corporations Act.

Injunctions restraining the enforcement of letters of credit and performance guarantees: The Australian experience Thanuja Rodrigo

This article examines the grounds upon which Australian courts intervene in the enforcement of letters of credit and performance guarantees by granting injunctions. A review of cases indicates that whilst an applicant may raise fraudulent conduct and unconscionable conduct as grounds for interlocutory relief restraining a beneficiary’s call under a letter of credit or performance guarantee, an additional reason known as a negative stipulation in the contract may also be available for restraining a beneficiary calling under a performance guarantee. This article concludes with a policy perspective of fraud and unconscionability as established grounds upon which injunctions are granted.

Data and information collected by genetically modified organism suppliers: For whose benefit? Charles Lawson

The suppliers of agricultural equipment, inputs and services are likely to increasingly collect data and information about their equipment, inputs and services; such information has great potential to improve their businesses and agricultural competitiveness. This article reviews the current arrangements in Australia concerning collecting data and information in the supply of plant genetically modified organisms (GMOs) as inputs to agriculture under the Gene Technology Act 2000 (Cth), the Agricultural and Veterinary Chemicals Code Act 1994 (Cth) and a GMO supplier contract. It provides a case study on the ways that regulation empowers and validates suppliers collecting data and information from their customers. The article concludes by stating the necessity of a comprehensive assessment and review of whether these regulatory impositions are unfairly favouring suppliers through facilitating their access to customer data and information.

COMPANY LAW AND SECURITIES – Professor Robert Baxt AO

  • Judicial recognition of indirect causation and shareholder class actions – Michael Legg and Madeleine Harkin

For the PDF version of the table of contents, click here: Westlaw AU – ABLR Vol 44 No 6 Contents or here: Checkpoint – ABLR Vol 44 No 6 Contents.

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