Responsible lending – updated guidance and practical considerations
Lenders’ responsible lending obligations have been a fluid topic in the wake of the Hayne Royal Commission’s final report in February 2019. In that report, Commissioner Hayne said that he was ultimately not persuaded that the National Consumer Credit Protection Act 2009 (Cth) (NCCP) needed to change in that aspect. His view was that the […]
ReadmoreMortgagees and verifying mortgagors’ identities – a time of change
On 18 December 2019, the Australian Registrars National Electronic Conveyancing Council (ARNECC) released a consultation draft of version 6 of its Model Participation Rules. It pertains to Mortgagees’ “Verification of Identity” (VOI Draft) requirements when registering mortgage securities, which are separate to AML / CTF KYC requirements. The VOI Draft – which contains one very […]
ReadmoreMortgage Brokers – You could be up for $1.05M in fines from 1 July 2020
On 6 February 2020, the Financial Sector Reform (Hayne Royal Commission Response – Protecting Consumers (2019 Measures) Bill 2019 (Bill) passed in Parliament. The Bill gives effect to recommendations 4.7 and 4.2 of the Hayne Royal Commission by amending the National Consumer Credit Protection Act 2009 (Cth) (NCCP) and the National Consumer Credit Protection (Transitional […]
ReadmoreConsiderations for an early release of superannuation request
Quite often a lender will receive a request from their customer to support an early release of superannuation to assist with mortgage repayments and pay outstanding arrears in situations where the lender has commenced enforcement action for possession of the mortgaged property. Click here for full size image. […]
ReadmoreBEAR (now FAR) – the extension of the Banking Executive Accountability Regime
On 4 February 2019, the Morrison Government announced it would implement recommendations 3.9, 4.12, 6.6, 6.7 and 6.8 of the Financial Services Royal Commission to extend the Banking Executive Accountability Regime (BEAR) to all APRA-regulated entities e.g. banks, insurance and superannuation firms and provide joint administration to ASIC as the conduct regulator. On 22 January […]
ReadmoreUpdate: Banking Code of Practice
Following recommendations made by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services industry, ASIC has approved an updated version of the Banking Code of Practice, which will take effect from 1 March 2020. Click here to download the full article. […]
ReadmoreInsolvent Corporate Trustees – a way forward to realising trust assets
The recent decision of Cremin, in the matter of Brimson Pty Ltd (In Liquidation) [2019] FCA 1023 (Cremin) helpfully clarifies the approach practitioners ought to adopt when realising the assets of an insolvent corporate trustee. Here, the liquidator was appointed to three companies which each operated “Snooze” franchises in their capacity as trustee of a […]
ReadmoreQueensland Supreme Court considers “unconventional” forms of security for costs and whether expert reports are privileged and not required to be disclosed
The case of Murphy v Gladstone Ports Corporation Ltd [2019] QSC 12 (Murphy v Gladstone Ports) examines whether: A deed of indemnity issued by a foreign company, coupled with the payment of money into Court for the purposes of enforcing the deed of indemnity in the foreign jurisdiction, is sufficient security for the purposes of […]
ReadmoreConcurrent appointments and priority creditors – who may distribute pursuant to section 561 of the Corporations Act?
In Kirman v RWE Robinson & Sons Pty Ltd (in liq), in the matter of RWE Robinson and Sons Pty Ltd (in liq) [2019] FCA 372, the Court helpfully clarifies who is entitled to make payments to priority creditors in scenarios where receivers and liquidators are concurrently appointed. Background RWE Robinson & Sons Pty Ltd […]
ReadmoreRed card for borrower claiming application fee as penalty
With the recent lending slowdown in the Australian banking sector, lead by the Banking Royal Commission, tougher lending standards and tighter serviceability requirements, demand for alternative non-bank lenders continues to increase. It is common for a non-bank lender’s lending terms to include an up-front arrangement or origination fee in respect of the establishment of the […]
ReadmoreCulture-related Regulatory Enforcement: Where might the Australian ‘BEAR’ go hunting?
This two-part briefing has been prepared for in-house legal, risk and compliance professionals in financial services firms, including insurance and superannuation entities. Part one of this briefing covers the following matters: Introduction to the “Banking Executive Accountability Regime” (BEAR) What is required under the regime and penalties for individuals and companies BEAR’s imminent expansion to […]
ReadmoreService of a creditor’s statutory demand – the importance of serving at the registered office maintained by ASIC
The recent decision of Mills Oakley v Asset HQ Australia Pty Ltd [2019] VSC 98 highlights the need for strict compliance when serving a creditor’s statutory demand on the registered office of a company. The Court considered whether a creditor’s statutory demand, with an error in the registered address of the company, was served in accordance with […]
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