Current Publications

Banking and Finance category has 56 Document(s)

Publication	Version	File Size
New challenges for residential investment lenders - Regulation and Compliance Update - August 2010	1	29KB
Many lenders who did not make UCCC regulated loans now face the challenge of complying with the National Credit Code. This new regulation has particular impact on those lenders who make loans to individuals to purchase or refinance investment residential property.

Mortgage Market Developments - Regulation and Compliance Update - August 2010	1	33KB
Rapid changes continue impacting the mortgage industry. Here’s a quick summary on some recent developments.

Referrers and Websites - Regulation and Compliance Update - July 2010	3	39KB
Many lenders and brokers receive business through referrals and websites. These business sources will not need to be licensed or appointed as a credit representative so long as certain conditions are satisfied.

NCCP – The First Week - Regulation and Compliance Update - July 2010	1	35KB
The NCCP Act is now part of our lives. Jon Denovan looks at some current issues.

NCCP Regulations Amended - Trustees - Banking and Finance Update - June 2010	3	36KB
The National Consumer Credit Protection Amendment Regulations 2010 (No.3) establishes a regime for trustees and other special purpose vehicles.

Just Four Weeks to Go - NCCP Act - Regulation and Compliance Update - June 2010	1	69KB
Commonwealth regulation of lenders, brokers, and other intermediaries and the new National Credit Code (NCC) commence in just four weeks. What’s this mean for the finance industry?

Commonwealth Unfair Contract Terms Legislation Commences 1 July 2010 - Regulation and Compliance Update - May 2010	1	33KB
The start date for the unfair contract terms provisions of the Trade Practices Amendment (Australia Consumer Law) Act (No 1) 2010 has been confirmed to be 1 July 2010.

NCCP Regulations Amended - Regulation and Compliance Update - May 2010	1	30KB
Amendments to the NCCP Regulations deal with reduced fees for single person companies, rules for lenders with run off books, and the exemption for point of sale credit.

Removing Caveats on Title - Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd & Ors - Banking and Finance Update - April 2010	1	22KB
The recent NSW Supreme Court decision of Guardian Loans Pty Ltd v FTFS Holdings Pty Ltd & Ors has examined the discretion of the Court to order the removal of a caveat on title. It is one of a number of recent cases that have dealt with charging clauses in documents and the issue of “securing” properties with caveats.

Here Comes the Commonwealth Unfair Contract Terms Legislation - Regulation and Compliance Update - March 2010	2	39KB
Just when you thought you had all the regulation you could handle, the Trade Practices Amendment (Australia Consumer Law) Bill 2009 has been passed and is awaiting assent and the Trade Practices Amendment (Australian Consumer Law) Bill (No.2) 2010 has been introduced to the lower house

Appointment of Credit Representatives under the NCCP Act - Regulation and Compliance Update - March 2010	3	31KB
Once a business is registered, it can start appointing credit representatives straight away. Jon Denovan looks at some of the procedures

Self-managed Superannuation Fund update - Regulation and Compliance Update - March 2010	1	32KB
On 10 March 2010, the government released information dealing with superannuation funds which borrow money or invest in instalment warrants.

Self Managed Superannuation Funds - Is Your Fund Ready for its Compulsory Audit? - Superannuation Update - March 2010	1	28KB
With the last quarter of the financial year fast approaching, it is important to take a look at your self managed superannuation fund to ensure it complies with the relevant legislation.

Greater GST Obligations for Mortgagees in Possession - Tax Update - March 2010	1	30KB
Amendments to the GST law now in force have significant consequences for mortgagees dealing with default accounts.

Goodridge v Macquarie Bank Limited - Banking and Finance Update - March 2010	1	24KB
This recent decision by the Federal Court of Australia considers the effectiveness of assignment and novation provisions in relation to margin lending transactions. While the findings of this case are limited to the particular facts, the decision reiterates the need for financiers and corporate trustees to have an excellent understanding of their rights and obligations under transaction documents before attempting to assign or transfer arrangements. This can be of particular importance when a loan book is being transferred as opposed to a single loan.

National Consumer Credit Protection Legislation (NCCP) Update - Regulation and Compliance Update - February 2010	1	47KB
This update provides you with a short status report on the move towards the Commonwealth regulation of credit.

Personal Property Securities Law Update - November 2009	1	38KB
Legislation to reform personal property securities (PPS) law was passed by the Senate on 26 November 2009. What do I need to know?

Priority Arrangements in Mortgage Enforcement Actions - Banking and Finance Update - November 2009	1	23KB
This recent unanimous decision of the High Court of Australia highlights the need for mortgagees to carefully consider the terms contained in their guarantees, as certain provisions can displace priority arrangements between mortgagees in any enforcement action, through rights of subrogation.

National Consumer Credit Protection Act passed! - Regulation and Compliance Update - October 2009	1	33KB
The Senate passed the National Consumer Credit Protection Act and a number of associated Bills on Monday 26 October 2009. Industry now has sufficient certainty to start planning with confidence for the staged implementation.

Are Variable Interest Rates Variable? Mortgage Loans and Variations to Lenders' Terms, Fees and Charges - Banking and Finance Update - October 2009	1	21KB
The vast majority of mortgage loans are wholly variable at the lender’s discretion. But are they? Let’s assume the lender’s variable rate starts out 100bps above cash rates. Over the term, the lender increases the interest rate to cash rates plus 500bps. You would probably readily agree that the lender has acted improperly, and you probably suspect that a court would consider that this change is unconscionable. Presumably, therefore, whether a lender can change a variable rate depends on whether the change is reasonable. How can this reasonableness be assessed?

Variations of Existing Charges - Octaviar Overturned on Appeal - Banking and Finance Update - September 2009	1	22KB
In March we advised you about the Queensland Supreme Court decision of Octaviar. The result of that case required a significant change to practice where a financier held a charge securing debt under specified “Transaction Documents”. This effectively means that variations of or newly designated “Transaction Documents” had to be registered under the Corporations Act within 45 days of their creation. Failure to do this would result in the charge being void (to the extent of the increase in liabilities) in the event of a winding up, administration or deed of company arrangement

Regulation and Compliance Update - September 2009	1	35KB
Changed Commonwealth timetable for National Credit Reform by Jon Denovan of Gadens Lawyers, Sydney On 17 September 2009, the Minister for Financial Services, Superannuation and Corporate Law, Chris Bowen MP announced changes to the commencement dates for the National Consumer Credit Protection Reforms.

Banking and Finance Update - August 2009	1	39KB
National Consumer Credit Regulations - responsible lending brought forward for brokers and some lenders. By Elise Ivory of Gadens Lawyers, Sydney. On Friday 14 August 2009 the Commonwealth Government released the National Consumer Credit Protection (NCCP) Regulations and announced changes to the timetable for implementation.

National Finance Broking Agreement and Agreement to Act - Update - June 2009	1	1173KB
Written by Jon Denovan

Banking and Finance Update - July 2009	1	22KB
Commonwealth unfair contract terms legislation By Elise Ivory of Gadens Lawyers, Sydney. The Commonwealth Government has introduced its new unfair contract terms legislation to parliament by the Trade Practices Amendment (Australian Consumer Law) Bill 2009 (the Bill). The Bill amends the Trade Practices Act 1974 (TPA) and the Australian Securities and Investments Act 2001 (ASIC Act). The changes to the TPA and ASIC Act regarding unfair contract terms are largely the same.

Banking and Finance Update - July 2009	1	29KB
Will your contracts be unfair? The Australian Consumer Law On 24 June 2009 the Trade Practices Amendment (Australian Consumer Law) Bill 2009 (Bill) was introduced to Federal Parliament The new legislation applies to standard form contracts and provides that ‘unfair’ contract terms are void. All manner of standard form contracts including credit contracts are covered by the initiative. A contract containing an unfair term will continue to bind the parties to the extent that the contract is capable of operating without the unfair term.

National Consumer Credit Protection Bill Introduced to Parliament - Regulation and Compliance Update - June 2009	1	41KB
The National Consumer Credit Protection Bill introduced to the Commonwealth Parliament on 25 June 2009 differs in some material ways from the consultation draft released in April. It is likely that it will take until September to pass through parliament. There is potential for further changes during the parliamentary process.

NSW Government Tightens its Grip on Lenders with Tough New Mortgage Duty Laws - Banking and Finance Update - June 2009	2	18KB
From 1 July, New South Wales will not only be the only state in Australia that still imposes duty on mortgages, but will also seek to raise more revenue by broadening the operation of the existing law. These new revenue raising initiatives are part of the State Revenue Legislation Further Amendment Bill 2009 which is expected to operate from 1 July 2009. The provisions are complex, so in this update we do not deal with the provisions in detail.

Banking and Finance Update - June 2009	2	25KB
ATO gives green light to guarantees by members of self-managed superannuation funds on The ATO has issued a draft taxation ruling which, if finalised, will effectively end the debate ove over whether or not loans to self-managed superannuation funds can be guaranteed by a m member of the superannuation fund in their own right. The draft ruling makes it clear that loan products developed by gadens lawyers for superannuation funds will not result in a contribution being made to the superannuation fund either as a result of a guarantee being given by a third party or as a result of that guarantee being called upon by the lender.

Victorian Unfair Contract Terms Legislation and Mandatory External Dispute Resolution for Credit Providers – What You Need to Know - Banking and Finance Update - June 2009	2	47KB
The Fair Trading and Other Acts Amendment Act 2009 became law on 10 June 2009. This Act extends the Victorian Fair Trading Act 1999 provisions regarding unfair contract terms to include consumer credit contracts, mortgages, guarantees, and leases from 11 June 2009 and requires credit providers who provide UCCC regulated finance to Victorian residents to belong to an ASIC approved external dispute resolution scheme from 1 July 2009 (this is in addition to the existing requirement to be a registered credit provider in Victoria). Lenders who are not currently members of a scheme need to act promptly. Victoria has implemented these initiatives to cover the gap until the Commonwealth take over of the regulation of credit.

Banking and Finance Update - April 2009	2	19KB
Commonwealth regulation of credit. Draft legislation for the Commonwealth takeover of credit was released on 27 April 2009 for public comment. This legislation represents a significant change for the Australian credit industry. The consultation period closes on Friday, 22 May 2009.

Commonwealth Regulation of Credit - April 2009	3	245KB
A summary prepared by Gadens Lawyers based on the drafts released on 27 April 2009.

Banking and Finance Update - April 2009	1	25KB
Real Property and Conveyancing Legislation Amendment Bill 2009 - NSW Following on from our January 2009 update on the statutory duty of mortgagees to sell at market value, we report on the Real Property and Conveyancing Legislation Amendment Bill 2009 which is currently before the NSW State Parliament.

General Update - March 2009	1	30KB
Corporate risks in a GFC world - "Red Flag Issues". The global financial crisis (GFC) will have a significant impact on all businesses. “Never let a serious crisis go to waste. What I mean by that is that it is an opportunity to do things you could not do before.” Although there is argument about who was the author of this quote, the fact is that for most companies the GFC provides an opportunity for rebirth, doing things better, and avoiding mistakes of the past. Part of this opportunity is to better manage corporate risk. Gadens Lawyers can provide very valuable, cost effective assistance in this process through our specific "Red Flag" review program we have developed for the GFC climate.

Banking and Finance Update - March 2009	1	37KB
GST and sales by receivers and liquidators. The government has announced an intention to change the law to ensure that liquidators and receivers are liable to pay GST on the sale of assets of an impaired entity. Gadens Lawyers are lobbying against this enshrining of an unfair priority for the ATO. ASIC intervenes in three court cases regarding the enforcement of low doc loans Until now regulators have not been active in court cases regarding low doc loans or deferred establishment fees. ASIC has now changed all that. Commonwealth takeover of credit Although there have been no public announcements, presumably the Commonwealth takeover of credit due to commence on 1 July 2009 is still proceeding. Now is a convenient time to remind ourselves of what is proposed. An Australian Consumer Law - consultation paper To read a summary of the recently released information and consultation paper on consumer law reform.

Regulation and Compliance Update - March 2009	1	35KB
Commonwealth to take control of consumer protection The Commonwealth is likely to take control of consumer protection following proposals to amend the Trade Practices Act and hand over responsibility for many areas covered by the states' Fair Trading Acts. Importantly, the proposals include the power to review unfair contract terms, including terms in loan contracts.

Banking and Finance Update - February 2009	1	34KB
Loss arising from non arms length sale: Court allows lender to recover against various third parties. A non arms length sale is a hazard that most incoming mortgagees want to avoid. This month Levy J, in the District Court of NSW, found that a lender was entitled to recover a shortfall from a number of third parties who had varying degrees of responsibility for submitting a misleading front page of a sales contract as part of a loan application.

Banking and Finance Update - January 2009	1	23KB
The statutory duty to sell at market value - The October 2008 decision of the Queensland Supreme Court in Sablebrook provides guidance for mortgagees when exercising a power of sale upon default by a mortgagor. The use of valuations and the consideration of market trends by mortgagees are considered by courts when determining reasonableness. Indefeasibility of title - The October 2008 Federal Court decision of Haslam highlights the need for lenders to carefully check the conditions of any pre existing lease arrangements before taking a mortgage as security over property.

Banking and Finance Update - January 2009	1	35KB
Penalty clauses in broker and management agreements - The November 2008 judgement of the New South Wales Court of Appeal in the Integral Home Loans case provides further guidance for the mortgage industry in negotiating broker and management agreements.

Banking and Finance Update - December 2008	2	38KB
Workouts and Restructures - Gadens Lawyers' Workouts and Restructure Group provides unique solutions to business management and loan recovery. The key objective of the Workouts and Restructure Group is to provide solutions to difficult problems without resorting to expensive and counter productive litigation

Banking and Finance Update - November 2008	2	32KB
Personal Property Securities Reform. This report provides an update on the proposal to replace all types of security with the exception of real estate mortgages with a new regime known by the acronym PPS which stands for Personal Property Securities. The PPS regime will replace many, sometimes inconsistent, state and territory laws and registers. It’s proposed the PPS regime will commence in May 2010. The final form of the law is not yet known and so it is too early to work on amended documentation and procedures. The final form of the law and regulation should be known early in 2009.

Banking and Finance Update - November 2008	2	32KB
Mortgage Industry Consolidation. The reduction in non‑bank lending, reduced commissions, and decreased lending volumes have led to an increase in amalgamations and business sales. Many brokers embark on a proposed sale or purchase without understanding the significant risks associated with such a transaction.

Regulation of Credit Providers and Finance Brokers - Updated 4 November 2008	5	1244KB
Written by Jon Denovan

Banking and Finance Update - October 2008	1	33KB
National Consumer Credit. Please find below a summary of the key points raised by Senator Nick Sherry today, which provides the latest update for the Commonwealth takeover of credit and finance broking. Although it is envisaged that legislation will be in place by mid 2009, it is understood there will be a two year transition period.

Banking and Finance Update - September 2008	1	37KB
ASIC ban on short selling. Effective 22 September 2008, ASIC has banned the short selling of securities (subject to a limited authorised market-maker exemption). ASIC's move has been made in response to announcements by overseas regulators including the US, the UK and now France, Germany, Switzerland, Ireland and Canada. The changes have been implemented by two new class orders and are effective immediately.

WA Finance Brokers Licensing - Mortgage Managers Practice Module - Updated 1 September 2008	2	2188KB
Written by Jon Denovan

National Finance Broking Contract - Updated 2 September 2008	9	11327KB
Explanatory guidelines - drafted by Jon Denovan

Queensland Banking and Finance Update - June 2008	1	13KB
Queensland Mortgage Duty Abolished. The Treasurer, Andrew Fraser, when handing down the 2008/2009 Queensland State Budget announced the abolition of Queensland mortgage duty effective 1 July 2008.

Banking and Finance Update - June 2008	1	46KB
Commonwealth Credit Reform - the Commonwealth Government has issued a Green Paper titled "Financial Services and Credit Reform". This report summarises the proposals in the Green Paper

Queensland Banking and Finance Update - June 2008	1	11KB
Queensland mortgage duty abolished - the Queensland Treasurer, Andrew Fraser, when handing down the 2008/2009 Queensland State Budget announced the abolition of Queensland mortgage duty effective 1 July 2008

Banking and Finance Update - June 2008	1	35KB
Uniform Consumer Credit Code Developments. Although most lenders are focused on the major problems presented by the liquidity crisis, there are many continuing developments in the realm of consumer protection.

Banking and Finance Update - June 2008	3	33KB
Limited liability - a headache for banks and insurers. The limited liability of contractors leaves banks and insurers exposed. The potential recovery gap created by the mandatory limitation of liability under professional standards legislation is causing headaches as banks and insurers debate who should carry this exposure.

NSW Budget 2007/2008 Update	1	17KB
The NSW Government Budget 2007/2008 The Budget makes significant changes to the timing of the abolition of mortgage duty and provides other reductions in duty

Banking and Finance Update - May 2007	1	30KB
GST traps for mortgages - a mortgagee's LVR can be instantly increased 10% by incorrect treatment of GST - in some circumstances the ATO effectively becomes a secured creditor ranking ahead of the mortgagee - fundamental to a mortgagee's credit assessment is the mortgagee's position as secured creditor - for example, if a mortgagee's credit policy requires loans not to exceed 80% LVR, it is fundamental to the transaction that the mortgagee ranks as first mortgagee for that amount

Banking and Finance Update - January 2007	1	17KB
Mortgage managers and brokers need to act now - WA finance brokers licensing scheme finalised - on 5 January 2007 the final part of the Finance Brokers Licensing regime in WA was gazetted removing the last hurdle facing businesses from obtaining a finance brokers licence in WA

A New Name for a Great Team	1	118KB
The Regulatory Advisory and Compliance Group (the RAC Group) is the new name for gadens lawyers compliance team.

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