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Vol 25 No 1 March-May 2011


Unravelling the mysteries of s459S of the Corporation Act: some recent developments

Author : Farid Assaf

Resisting a winding up application in insolvency is always a challenge. That challenge is particularly difficult when the winding up application follows non-compliance with a statutory demand. A company faced with the statutory presumption of insolvency arising under s459C of the Corporations Act, 2001 (‘the Act’) can usually only resist such an application if it can prove it is solvent. The main reason for this is s459S of the Act. ... In recent years, s459S has received a considerable amount of judicial attention. Unfortunately, the increased judicial attention has not necessarily resulted in judicial clarification. In this article I explore two main questions. Firstly, precisely when does s459S operate? That is, when is leave required for a company to oppose a winding up application on a ground that it did in fact rely upon, or could have relied upon for the purposes of an application to set aside a statutory demand? The second, and more vexing question discussed is when is a ground material to proving that a company is solvent within the meaning of sub-section 459S(2)?

'Unconscionability' in consumer ecommerce

Author : Dr Dan Jerker B Svantesson

This article examines Australia’s regulation of unconscionable conduct, in the setting of consumer ecommerce. Both the equitable doctrine of unconscionability and the regulation of unconscionable conduct under the Competition and Consumer Act 2010 (Cth) with its Australian Consumer Law are considered. Account is also taken of case law relating to how unconscionable conduct was regulated under the Trade Practises Act 1974 (Cth). The article highlights that, while the regulation of unconscionable conduct has great potential to benefit and protect ecommerce consumers, it has not really been utilised so far. Further, our key areas of concern for the unconscionability regulation of consumer ecommerce are identified and discussed. Finally, a few speculations as to the future role of unconscionability regulation for consumer ecommerce are presented.

Personal Property Securities Act 2009 (Cth): some consequences for buyers of personal property

Author : Andrew Boxall

The purpose of this paper is to consider the consequences of the Personal Property Securities Act 2009 (Cth) and the regime established under it for purchasers of personal property. In particular, the paper considers the circumstances in which a purchaser of personal property which is subject to a security interest regulated by the Act may acquire the property free of that security interest. The paper assumes that readers are broadly familiar with a number of basic concepts under the Act, including notably: • what is personal property for purposes of the Act;2 • what is a security interest;3 • what is collateral;4 • who is a grantor or a secured party;5 • interests to which the Act does not apply;6 • the attachment of security interests, and their enforceability against grantors;7 • the enforceability of security interests against third parties;8 and • the perfection of security interests.9 In this paper: • references to the Act are to the Personal Property Securities Act 2009 (Cth); • references to the Regulations are to the Personal Property Securities Regulations 2010 (Cth); • the abbreviation s followed by a number or combination of numbers and letters are to the corresponding section of the Act; • the abbreviation r followed by a number or combination of numbers and letters are to the corresponding provision of the Regulations; • defined terms in the Act or Regulations bear the same respective meanings as in the Act or the Regulations; and • property is serial numbered if it is personal property which under the Regulations is required or permitted to be described in a registration by reference to a serial number referrable to that property.

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