All FocusPapers
As highly regarded experts in their fields, the team at Addisons are regularly called upon to write for a variety of publications or speak on particular areas of law in the media. We understand the importance to our clients of having regular access to articles outlining the current legal issues effecting their businesses.
We have therefore created the Addisons FocusPapers, where you will find recent articles, publications and newsletters written by our team on particular practice areas and specialisations.
Ribena - a Sure Recipe for Deception!
7 February 2008
Author: Jamie Nettleton, Partner
Practice area: Marketing & Advertising
Early last year, GlaxoSmithKline ("GSK"), the manufacturer and supplier of Ribena, the popular blackcurrant fruit drink, was fined NZ$227,500 and ordered by the Auckland District Court to run a corrective advertising campaign.
Interface between TGA and Food Regulation
5 February 2008
Author: Jamie Nettleton
Practice area: Marketing & Advertising
The distinction between the regulation of therapeutic goods and food regulation has become increasingly blurred due to the prevalence of foods and drinks on the market that claim to have health benefits and nutritional qualities.
Cartel Conduct to be a Criminal Offence in Australia
24 January 2008
Author: Graham Maher, Partner and Kathryn Edghill, Partner
Practice area: Competition, Trade Practices & Regulatory
On 11 January 2008 the Australian Government released for public comment a draft Bill (Bill) in which it proposes to amend the Trade Practices Act 1974 (Act) by introducing two criminal offences relating to cartel conduct. One aspect of the proposed amendments includes a broadening of the extraterritorial application of the Act which will make the accessorial liability provisions applicable to conduct engaged in wholly outside Australia, but which has an effect in an Australian market.
Australian Competition Regulator Comments on New Predatory Pricing Prohibition: Trade Practices Act 1974 (s 461AA)
17 January 2008
Author: Graham Maher, Partner and Kathryn Edghill, Partner
Practice areas: Corporate, Mergers & Acquisitions and Competition, Trade Practices & Regulatory
With effect from 25 September 2007 the Australian Trade Practices Act was amended, among other matters, to include, in the context of the prohibition on misuse of market power, a specific provision prohibiting predatory pricing. The expressed purpose of the new provision is to "specifically target(ing) anticompetitive below-cost pricing by corporations with a substantial market share". Recently, in the context of its Report into the price of unleaded petrol in Australia the Australian Competition and Consumer Commission discussed the new provision and proffered some preliminary guidance as to its likely interpretation.
Federal Court Delivers Decision on "Naked No Vote" Break Fees
16 January 2008
Author: David P. Selig
Practice area: Corporate, Mergers & Acquisitions
On 10 December 2007, the Federal Court in Bolnisi Gold NL (No 2) [2007] FCA 2078 delivered a judgment which provides guidance on "naked no vote" break fee provisions in the context of takeovers and schemes of arrangement. A "naked no vote" break fee is a break fee which is payable by a target to a bidder where the takeover or scheme is rejected by the target's shareholders, despite the absence of any competing offer from another bidder.
Share Valuations - Your minority shareholding may be worth more than you thought!
14 January 2008
Author: Philip Stern, Partner
Practice area: Corporate, Mergers & Acquisitions
It has been the view of many valuers of shares that "fair value" of shares means that the share of a minority shareholder must be discounted because of an inability to control meeting resolutions. In fact a premium for the worth of the minority shares may be appropriate. The Victorian Court of Appeal in Toll (FHL) Pty Ltd v Prixcar Services Pty Ltd [2007] VSCA 285, 10 December 2007 found that "fair value" did not of itself equate to "market value". A premium may attach to a minority shareholding because of a strategic significance in "blocking" resolutions, and potentially because of the ability of a minority shareholder to enter into a relationship of mutual cooperation with a larger shareholder(s). Persons may pay more to avoid the nuisance of a minority investor, particularly if attenuated by greenmail. There is a special value to be placed potentially to an acquirer getting 100 percent of a company (or close) and not have to deal with a third party investor.
Uncommercial Transactions: Capital Finance Australia Limited - v - Tolcher [2007] FCAFC 185
14 January 2008
Author: Philip Stern, Partner and Nicole Tyson, Senior Associate
Practice area: Insolvency & Corporate Reconstruction
The Full Federal Court has recently found that a complex arrangement involving the entry into a deed by an insolvent debtor, and payments to particular creditors under that deed, was an uncommercial transaction and voidable under section 588FB Corporations Act 2001.
Lessors beware! A few loose words may land you with a five year obligation!
4 December 2007
Author: Philip Stern
Practice area: Commercial Property
Two recent decisions of the Administrative Decisions Tribunal Retail Leases Division have far reaching implications in declaring when a statutory lease or sub-lease exists. These cases establish that, even if a contract for a formal lease has not been entered into and only verbal or implied agreements exist, the combined effect of sections 3 and 8 of the Retail Leases Act 1994 (the Act) may mean that a statutory lease is nonetheless created. Section 16 of the Act then provides that this lease is for a minimum term of five years.
Takeovers Panel Reissues Guidance Note on Lock-up Devices
28 November 2007
Author: David P. Selig
Practice area: Corporate, Mergers & Acquisitions
On 13 November 2007, the Takeovers Panel ("Panel") reissued Guidance Note 7 regarding its approach to lock-up devices in control transactions ("Guidance Notice"). Lock-up devices refer to arrangements entered into by targets to encourage or facilitate a takeover bid and include arrangements such as break fees, asset lock-ups, no-talk agreements and no-shop agreements. Whilst the Panel's guidance notes are not binding, they provide guidance as to when the Panel is likely to make a declaration of "unacceptable circumstances" pursuant to section 657A of the Corporations Act 2001 (Cth) ("Act").
Fashion Industry - How Can Intellectual Property Rights Assist You?
19 November 2007
Author: Jamie Nettleton, Partner
Practice area: Intellectual Property & eCommerce
As part of a joint initiative, the Australian Fashion Council, Council of Textile and Fashion Industries of Australia and IP Australia (the Australian Government Agency responsible for administering intellectual property rights) have launched 'Fashion Rules', which is a guide to intellectual property for the Australian clothing and fashion design industry.
Are problem gamblers owed a duty of care under Australian law?
14 November 2007
Author: Jamie Nettleton, Partner
Practice area: Gambling
Although it is generally understood that no duty of care is owed to problem gamblers to prevent them from suffering gambling loss, recent Australian case law suggests that there may be instances where a successful claim in negligence can be brought.
Transfers of shares in un-listed companies - to be or not to be?
2 November 2007
Author: Philip Stern, Partner
Practice area: Corporate, Mergers & Acquisitions
It is vital that the requirements for a valid transfer of shares in an un-listed company are complied with. Otherwise, the validity of ongoing resolutions passed by a company may be challenged, and those who believed themselves to be shareholders may find they lack the voting and dividend rights they thought they had. In the recent decisions of Ku v Song [2007] FCA 1189 and Beck v Tuckey [2007] NSWSC 1065, these requirements were considered.
Australia adopts new predatory pricing prohibition
11 October 2007
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
Recent amendments to the Australian Trade Practices Act have created a separate offence of predatory pricing which is not dependent upon a corporation having a dominant position in a market or substantial market power.
Doing business with government in Australia - no immunity from breach of the Trade Practices Act
11 October 2007
Author: Kathryn Edghill, Partner and Graham Maher, Partner
Practice area: Competition, Trade Practices & Regulatory
On 29 August 2007, the Australian High Court handed down its decision in ACCC v Baxter Healthcare Pty Limited [2007] HCA 38. The decision is significant for any company dealing with Australian Federal, State and Territory government bodies, such as purchasing authorities. The decision sweeps away any derivative crown immunity which attached to companies doing business with government bodies and opens the door for such companies to be liable for breaches of Australia's antitrust law, the Trade Practices Act 1974 (Cth) (TPA).
Foreign Entities wishing to List on the Australian Securities Exchange
10 October 2007
Author: David P. Selig, Partner
Practice area: Corporate, Mergers & Acquisitions
Subject to meeting certain requirements under the Corporations Act 2001 (Cth) and the Listing Rules of ASX Limited (ACN 008 624 691), foreign entities may list on the Australian Securities Exchange ("ASX").