Contents:
March 2010
Contents:
The recent Australian case of Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 suggested that a lender cannot novate its rights and obligations to a third party without the consent of the borrower and cannot assign a loan agreement if it contains obligations to make further credit available to the borrower.
An investor in Macquarie Countrywide Trust mortgaged his units in the trust as security for a margin loan. The margin loan was then sold as part of a margin loan portfolio by Macquarie to Leveraged Equities Ltd. Notices were sent to the affected borrowers but the investor claimed not to have received such a notice. As a result of market movements Leveraged Equities then made a series of margin calls on the investor's account, which the investor was unable to comply with. As a result Leveraged Equities sold the mortgaged units.
The Court was asked to consider whether the enforcement of the security was valid under the terms of the loan agreement. The Court decided that, even though the margin lending agreement contained a clause allowing novation without the borrower's consent, the novation clause was an agreement to agree and not binding on the borrower. The Court also found that the margin lending agreement was incapable of assignment because it contained an obligation on the lender to extend further credit. That obligation was so intertwined with the agreement that the rights under the agreement were not assignable.
This decision has created some concern, particularly in the securitisation market in Australia. However it appears that the decision will be confined to the particular facts of the case; it does not change the law in respect of novation or assignment. The case is likely to be appealed.
The recent case of FXHT Fund Mangers Ltd (in liq) v Oberholster (2009) 10 NZCLC 264,562 highlights the risk of a director becoming involved in a company whose business is outside the director's expertise. All directors, including non-executive directors, have a responsibility to take an active interest in the corporate governance of a company. It is not sufficient for a director to rely on the verbal assurances given by those responsible for the day to day business operations of the company.
In this case Dr Obersholster, a general medical practitioner, became a director of FXHT Funds, which was in the business of managing private clients' investments in foreign exchange markets. Dr Oberholster gave Mr Hitchinson, the main driving force behind FXHT Funds, a free rein over the control of the company and only made casual verbal enquiries about the performance of the company. Dr Oberholster never saw formal monthly reports and the company had no business plan or budget.
The company failed following unsuccessful investments and the misappropriation of funds by Mr Hitchinson, who was charged with fraud. The liquidators of FXHT Funds brought proceedings against Dr Oberholster.
Dr Oberholster was found to have failed in the duties he owed to FXHT Funds under s135 (reckless trading) and s137 (director's duty of care) of the Companies Act 1993. The court held that he was negligent in relation to his lack of control over the company generally and the latitude that he extended to Mr Hitchinson. Dr Oberholster was unable to rely on the defence provided by s138 of the Act (reliance on information and advice) as that defence contemplated reliance on proper written documentation, and not the general and unsubstantiated advice he had received that investors' funds were secure and that the company was operating in a lawful manner.
The court took into account that Dr Oberholster had acted honestly at all times, was also the victim of Mr Hitchinson's fraud, was initially less than a 50 per cent shareholder and was one of two directors. It capped his liability at 50 per cent of the monies misapplied by Mr Hitchinson, being NZ$17,492 and US$148,875.
The recent case of UDC Finance Limited v Whitely (High Court, Auckland, CIV 2008-404-000608, 17 December 2009 involved a successful application by UDC for summary judgment against Mr Whitley under a guarantee and indemnity given by Mr Whitely (sole director and shareholder of Kevair Limited).
UDC lent $540,000 to Kevair to purchase an aircraft from Air National Corporate Limited. As security for the loan, Kevair granted UDC a security interest in the aircraft and Mr Whitely gave UDC a personal guarantee.
Kevair was unable to meet its obligations under the loan and invited UDC to repossess the aircraft. UDC did not repossess the aircraft and instead made a demand on Kevair and on Mr Whitely for $479,541.61.
Mr Whitely opposed summary judgment, on the basis that the deed of guarantee created a secondary obligation only, so that he was not liable as a primary debtor. He also argued that equity would intervene to protect him as guarantor because UDC had an obligation to preserve both its security interest in the aircraft and the value of the security, but had failed to do so. Finally, Mr Whitely claimed that UDC had agreed to repossess the aircraft and he had relied on that promise to his detriment, giving rise to an estoppel.
The Court stated that equity will intervene to discharge a guarantee where the person guaranteed commits an act which is injurious to the surety inconsistent with his rights, or where the creditor fails to do something that he has a duty to do. Contrary to Mr Whitley's submissions, the court found that UDC had registered a financing statement on the Personal Property Securities Register in respect of its security interest, so the issue then became whether the security had been lost or impaired by UDC failing to take possession of the aircraft. The Court held that on the facts the value of the security had not been reduced.
UDC was entitled to elect not to exercise its right to take possession of the aircraft as it had no contractual obligation to do so, and it had no duty to take any steps to protect the value of the security (as distinct from ensuring that the security interest could be available to Mr Whitely).
The Court looked at the terms of the guarantee to determine whether equity could intervene to discharge the guarantee. The terms of the guarantee provided that obligations under the guarantee were absolute and unconditional, and would not be released or in any way affected by any act, omission, or rule of law which would release the guarantor. The court stated that it must give effect to the agreement of the parties as expressed in the guarantee.
Finally, on the question of whether promissory estoppel had arisen, the Court found no evidence of a clear and unequivocal promise by UDC to take possession of the aircraft. More significantly, Mr Whitely did not give any evidence to support this claim that he acted in reliance on this alleged promise, to his detriment. There was therefore no basis to this claim. Summary judgment was entered for UDC for $479,541.61.
In the case of BT Funds Management Ltd v Worger HC Wellington, (CIV-2004-485-1846, [2 December 2009], MacKenzie J., the plaintiffs sought relief orders under section 37AI of the Securities Act 1978 for non compliance with the requirements of section 37 of the Act. The plaintiffs had failed to comply with the requirements in certain exemption notices to file documentation with the relevant New Zealand authorities.
The issue in this case was whether relief orders should be made. Under section 37AI(2) of the Act, the Court must make a relief order if the contravention has not materially prejudiced the interests of the subscriber. The onus was on the plaintiffs (BT Funds Management) to satisfy the Court that the section applied. However, the Court noted it would be unreasonable to impose on the plaintiffs an evidential burden which required them to negative the existence of material prejudice to a subscriber.
There were four categories of objections made by subscribers. The first category argued that they would not have invested with the plaintiffs had they known that the plaintiffs were not complying with the law. Mackenzie J held that there was no material prejudice because there was no evidence from the objectors that the decision to invest might have been different had the circumstances of the non compliance been known.
The second category argued that they were deprived of access to particular information because of the failure to comply with the filing requirements as a matter of public record. This ground failed because any objector who claimed material prejudice from the non filing would have needed to adduce evidence to establish that the objector would have had regard to the public registers. There was no evidence of that sort from any objector.
The third category contended that when the contraventions became known, there were difficulties or uncertainties about the best course of action to take regarding the transfer of the investments which caused them loss. Mackenzie J held that there was no material prejudice because the securities involved were not traded on a secondary market. An investor who wished to realise the security had the option of redeeming the interest direct from the issuer and the redemption price would be based on the underlying value of the assets, not on the market perception of the value of the securities themselves.
The last category consisted of objectors who had not provided sufficient details to fall into any of the above categories. Mackenzie J held that the Court should not assume prejudice in cases where the objector had not particularised the grounds of prejudice. The Securities Commission also had not suggested any particular aspect of possible prejudice which may need investigation. Therefore, the plaintiffs were entitled to judgment by default and relief orders granted.
The case of Blanchett & Anor as liquidators of Gentry Residential Limited (in liq) v The Roofing Specialists Limited (2009) 10 NZCLC 264,583 examined the procedural steps for setting aside voidable transactions in a liquidation.
Previously, a creditor which received a notice to have its transaction set aside would have to apply to the Court in order for the transaction not to be set aside. Now, under section 294 of the Companies Act, the creditor need only send the liquidator a written notice of objection within 20 working days of being served. The onus is then on the liquidator to assess the reasons put forward by the creditor for not having the transaction set aside, and to then decide whether or not to apply to Court.
In this case, the creditor had received the notice from the liquidator that the transaction was to be set aside and had sent the liquidator a notice of objection within the 20 days required.
At the hearing the creditor pursued none of the grounds set out in its objection. The Court held that in the interests of justice the creditor should be permitted to advance the new argument. The Court noted that the creditor had filed a very detailed notice of opposition that set out its intention to raise the new argument. The liquidator was deemed not to be prejudiced by the new argument. The Court concluded that, except where arguments are raised so late that the liquidator has no opportunity to respond, they should be allowed. However, the liquidator could be awarded costs if he or she would not have issued proceedings had he or she known about the new argument.
In the case of Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 the High Court of Australia examined the subrogation rights of a guarantor in the context of mortgagee sale involving multiple mortgagees. This case may have significant implications for guarantors and mortgagees involved in mortgagee sales and dealing with priority deeds.
The facts of the case were reported in the March 2009 edition of Banking Law Update. A developer entered into loans which were secured by first, second, and third mortgages. The appellants guaranteed each of those loans. The first mortgagee exercised its power of sale and delivered surplus proceeds to the second mortgagee. The guarantors objected, claiming to have been subrogated to the first mortgagee's security and the principal debtor's right to an account for the surplus.
The High Court, reversing the decision of the New South Wales Court of Appeal, held in favour of the guarantors. They were entitled to be subrogated to the rights of the first mortgagee under section 3 of the Law Reform (Miscellaneous Provisions) Act 1965 (Cth). The comparable statutory provision in New Zealand would be sections 84 and 85 of the Judicature Act 1908. While the guarantor remains liable under its guarantee for the second mortgage, the first mortgagee held the surplus for the guarantor under a constructive trust. By implication, anyone involved in paying surplus proceeds over to a second mortgagee in this situation, including the solicitor for the first mortgagee, could potentially be liable for assisting in a breach of trust.
The High Court found that the subrogation rights could have been excluded by agreement. Accordingly, the second and third mortgagees could have improved their position through more careful drafting or through imposing conditions before discharging their mortgage. However, the Court found nothing in the guarantee agreement in this case that could have prevented the guarantors from exercising their subrogation rights. Furthermore, the High Court held that the guarantors were not bound to do equity by offering to "protect" the second mortgagee as the price of any equitable rights founded on their subrogation rights in respect of the first mortgage. Nor were the guarantors estopped from asserting their right of subrogation in respect of the first mortgage purely because they had guaranteed the second mortgage.
On 1 March 2010 it became compulsory under Part 5D of the Reserve Bank of New Zealand Act 1989 for all non-bank deposit takers to have a local currency (New Zealand dollar), long-term, issuer credit rating from an approved rating agency (currently Standard & Poor’s Ratings Services, Moody’s Investors Service and Fitch Ratings).
There is a class exemption from the requirement to have a credit rating where the consolidated liabilities of the borrowing group of the deposit taker are less than $20 million (measured as an average over a 12-month period). To receive the benefit of this exemption, a deposit taker must ensure its prospectus, investment statement and advertisements prominently state that its credit worthiness has not been rated and that it is exempt from the requirement to have a credit rating.
On 10 March 2010 the Government announced that the New Zealand wholesale funding guarantee will close on 30 April 2010.
On 16 March 2010 the Minister of Commerce released a Supplementary Order Paper which contains a number of proposed amendments to the Financial Service Providers (Pre-Implementation Adjustments) Bill (which passed its first reading on 16 February). The key amendments are as follows:
Investment management decisions: The Supplementary Order Paper proposes to amend the Financial Advisers Act 2008 by introducing a new concept of "making an investment decision" as part of the "financial adviser services" provided by financial advisers.
Under the proposed amendment, a person (A) will make an investment management decision (and therefore be providing a financial adviser service) if A decides which financial products to acquire of dispose of on behalf of a client (B), and in doing so is acting under authority granted to A (or A's employer or principal) to manage some or all of B's holdings of financial products.
Each type of financial adviser will be able to make an investment management decision in relation to the same range of products that they can give financial advice in relation to.
Brokers and broking services: The Supplementary Order Paper also proposes to introduce a new stand alone part into the Financial Advisers Act 2008 that allows both entities and individuals to provide "broking services". This replaces the current concept of "investment transactions" (which can only be provided by individuals under the current law), which will be removed from the meaning of "financial adviser services" provided by financial advisers.
A broking service is: "the receipt, holding, or payment of client money or client property by a person acting on behalf of a client. The mere transmission of a non-negotiable instrument payable to another person is not a broking service." Client money and client property are each defined as money / property "received from, or on account of, a client in relation to acquiring, holding, or disposing of financial products."
Brokers will need to comply with disclosure, conduct and money handling obligations. A broker will also need to be registered under the Financial Services Providers (Registration and Dispute Resolution) Act 2008. However, individuals or entities will not need to be authorised by the Securities Commission if they only perform broking services.
The Securities Transfer (Approval of Austraclear New Zealand Electronic Registries Interface System) Order 2010 (SR 2010/4)) came into force on 4 March 2010. The order approves the Austraclear New Zealand Electronic Registries Interface System operated by the Reserve Bank of New Zealand as a system for the transfer of securities for the purposes of the Securities Transfer Act 1991.
Section 7 of the Securities Transfer Act 1991 provides that securities may be transferred in accordance with a system of transfer that is wholly or partly electronic and that is approved by the Governor-General by order of Council.
The Securities Commission announced on 13 April 2010 that it has decided to file civil proceedings against Nuplex Industries Limited and certain current and former directors of Nuplex.
The Securities Commission alleges that Nuplex breached its continuous disclosure obligations under the NZX Listing Rules and the Securities Markets Act 1988 by failing to disclose to the market a breach of a banking covenant, and that both Nuplex and the directors are responsible.
This is the first continuous disclosure case brought by the Securities Commission. The Securities Commission is seeking declarations of contravention, pecuniary penalties (with a maximum penalty of up to $1 million per defendant) and compensatory orders.
Issue 11, 2009, of the Journal of International Banking Law and Regulation contains the article "A presentee bank's duty when examining a tender of documents under the Uniform Customs and Practice for Documentary Credits 600" by Ebenezer Adodo. This article examines the scope of a bank's duty when examining documents presented to it pursuant to a letter of credit in order to realise the credit.
The standard procedures to be followed by the presentee bank are contained in the Uniform Customs and Practice for Documentary Credits (also known as UCP) and were considerably revised in the latest edition of the UCP, commonly referred to as "UCP 600". UCP 600 removed the requirement that a presentee bank exercise "reasonable care" in examining documents. A presentation will be a "complying presentation" if it is in accordance with the terms and conditions of the credit, the applicable provisions of the UCP 600 and international standard banking practice.
The article considers if any duty is owed by the presentee bank when examining documents and if so to whom. The author also examines the impact local banking practice on the application of the UCP and concludes that a presentee bank is entitled to take account of any local banking practices (including expert evidence thereon) to the extent that the practice does not conflict with the UCP. Finally it considers the ambit of the new five-day time frame for completing the examination process.
By applying the three-stage inquiry in Caparo v Dickman the author concludes that , regardless of the removal of the duty to exercise reasonable care from UCP 600, a presentee bank may owe a duty of care to a beneficiary. The presentee bank must, in ascertaining the conformity of a presentation, at a minimum carry out the task in a professional and diligent manner. The presentee bank is not under an obligation to verify the genuineness of documents. But negligently or inadvertently ignoring suspicious features may mean it is unable to claim reimbursement.
On 31 March 2010 the Code Committee appointed by the Commissioner for Financial Advisers released the draft Code of Professional Conduct for Authorised Financial Advisers [AFAs] for public consultation. The deadline for submissions was 7 May 2010.
The draft Code outlines the minimum standards of professionalism for AFAs for the purposes of the Financial Advisers Act 2008, the new regulatory regime for financial advisers.
The Financial Advisers Act 2008 requires the Code to contain minimum standards of competence, knowledge and skills, of ethical behaviour, and of client care. It is also required to provide for continuing professional training for AFAs, including specifying requirements that an AFA must meet. AFAs can be disciplined for breaches of the Code.
Under the Financial Advisers Act 2008, financial advisers are required to be authorised in order to provide one or more of the following services:
- giving financial advice in relation to a category 1 product;
- making an investment management decision (as contemplated under the Supplementary Order Paper to the Financial Service Providers (Pre-Implementation Adjustments) Bill; or
- providing a financial planning service.
The Securities Commission has issued guidance for the financial advice sector on the boundary between a financial planning service and financial advice. The advice, released on 29 March 2010, is intended to help financial advisers prepare to meet the requirements of the Financial Advisers Act 2008 when it comes into force, expected to be before the end of 2010.
The Financial Advisers Act 2008 requires advisers providing a financial planning service to be authorised by the Securities Commission, whereas those advising only on a narrow range of financial products, such as bank term deposits, credit card and most insurance products ('category 2 products') will need to be registered but not authorised.
On 11 February 2010 the UK Treasury Committee announced that it is launching an inquiry into the phasing out of cheques and possible replacement technologies. In December 2009 the Board of the UK Payments Council announced that cheques will be phased out by October 2018 if they can be replaced by alternative methods of payment.
To assist with its inquiry, the Treasury Committee is seeking evidence on:
- trends over time in the use of cheques, including estimate of likely usage over the next five to ten years;
- the advantages and disadvantages of abolition, including the impact on specific groups in society; and
- the development of alternative payment mechanisms.
The Committee is accepting written submissions on the proposal up until 1 March 2010 and intends to hold oral evidence sessions at the end of March.
The December issue of the Journal of Banking and Finance Law and Practice 2009 contains two articles of interest.
The first article is entitled The trust: Evolution from guardian to risk-taker, and how a lagging insolvency law framework has left financiers and other stakeholders in peril by Nuncio D'Angelo. The article examines how Australian insolvency law in relation to trusts is poorly evolved and piecemeal, lacks an adequate and coherent statutory framework and is burdened with a range of uncertainties, particularly when compared with the corresponding law relating to corporations.
The article focuses on issues for financiers and other creditors to consider when dealing with a trust, including:
- the personal liability of the trustee and its right to be indemnified out of the trust assets;
- the right of the trustee's creditors to be subrogated to the trustee's right to be indemnified out of the trust assets;
- the impairment of the right of indemnity where the trustee has committed an unrelated breach of trust and its impact on creditors' right of subrogation;
- trustees' limitation of liability clauses;
- enforcement of both secured and unsecured debts by creditors of the trustee;
- the status of trust assets where the trustee is in voluntary administration or liquidation; and
- voidable and preferential transactions.
The author concludes that as trusts and companies become increasingly aligned in terms of economic risk, a new legal framework is required, applying lessons from company law history, policy and principles. The author maintains that it is difficult to see how anything short of statutory reform could properly remedy this situation.
The second article is Socially responsible investments: Markets, regulation and compliance risks by Tony Ciro and Ewa Banasik. Although socially responsible investments ("SRI") have been in existence for a considerable period of time, they are becoming increasingly prevalent and popular.
The article highlights the disclosure requirements for SRIs in Australia and the UK and indentifies a number of important compliance risks for issuers of SRIs and superannuation trustees that invest in SRIs. These include:
- the uncertainty surrounding the current Australian Securities and Investment Commission Regulatory Guide;
- the ambiguity surrounding the disclosure obligations for issuers of SRIs;
- the difficulties in balancing the trade-off between risk and disclosure when meeting the disclosure requirements; and
- concerns surrounding threat of litigation for trustees and pension administrators arising from balancing the trustee's obligations in respect of returns versus ethical investments.
It is argued that the regulation and disclosure obligations in both jurisdictions need to be improved so as to realise the desired objectives of improving confidence and certainty, and strengthening market transparency for SRIs. With an improved disclosure regime, Australia and the UK could provide an international benchmark for best practice for the SRI industry, allowing consumers to make more informed decisions about their investment goals.
Issue 2, 2010, of the Journal of International Banking Law and Regulation contains the article The age of consent by James Oldnall and Michael Clark. The authors examine the use, and interpretation, of consent provisions in standard assignment clauses in syndicated loan agreements.
Before the credit crunch it was common for parties to a syndicated loan agreement to include a clause requiring the consent of the borrower before any assignment or transfer of the debt could be made to a new lender. An example provided is the consent clause in the Loan Market Association standard investment grade loan. The LMA clause gives the lender the right to assign or transfer its rights under the loan agreement to a specific class of transferees and subject to the borrower's consent, such consent not to be unreasonably withheld.
The case of Argo Fund Ltd v Essar Steel Ltd ([2006] EWCA Civ 241; [2006] 2 All E.R. (Comm) 104) illustrated that the courts are willing to give a wide interpretation to the class of permitted transferees under such a clause. The authors maintain that this does not in itself limit the consent provision. The consent provision remains relevant because its purpose must be to protect the borrower from any adverse consequences from a transfer or assignment.
The authors examine the grounds on which a borrower might reasonably withhold its consent to an assignment or transfer. In the context of a loan agreement it is suggested that increased costs or adverse tax gross-up consequences would be grounds for a borrower to reasonably withhold its consent. However the authors suggest this may be overly restrictive and that there may be broader grounds, including general business or relationship considerations, that the courts may deem to be grounds for reasonably withholding consent to an assignment or transfer.
The article sets out a brief overview of the relevant case law on consent clauses and "reasonableness" tests, particularly by reference to the courts' analysis of similar types of consent clauses in leases and the exercise of discretionary decision-making powers contained in contracts.
As consent clauses do not impose a positive obligation on the borrower, the authors note that borrowers may not be liable for damages if the courts find that they have unreasonably withheld their consent.
In conclusion the authors submit that the courts and commentators need to provide further guidance on the issue before there can be any fixed rules in relation to withholding consent to an assignment or transfer of lenders' rights under syndicated loan agreements.
The February 2010 issue of the International Financial Law Review contains the article, "ISDA Master Section 2(a)(iii) - First test case" by Julian Barrow. The author reviews the UK High Court's judgement in Marine Trade v Pioneer Futures where the court considered the flawed-asset conditional payments provision in Section 2(a)(iii)(1) of the 1992 International Swaps and Derivatives Association Master Agreement. The author notes that on the basis of the court's reasoning, a court could reach a different interpretation of Section 2(a)(iii) in the 1992 and 2002 ISDA Master Agreements.
Section 2(a)(iii)(1) of both the 1992 and the 2002 versions of the ISDA Master Agreement states that the payment and delivery obligations of each party (prior to a close-out under Section 6) are subject to the condition precedent that "no event of default or potential event of default with respect to the other party has occurred and is continuing".
Marine Trade SA and Pioneer Futures Co Ltd BVI entered into a number of forward freight contracts governed by the 1992 ISDA Master Agreement. In February 2009, Pioneer owed $7 million to Marine Trade and Marine Trade owed $12 million to Pioneer. Under the net settlement provisions of Section 2(c) of the ISDA Master Agreement, which permitted cross-transaction payment netting, Marine Trade was to pay the $5 million difference to Pioneer.
Marine Trade refused to pay the net amount on the basis that Pioneer may have been unable to pay its debts as they fell due (which would be an event of default under Section 5(a)(vii)(2)) in reliance on Section 2(a)(iii). It also demanded the gross amount of $7 million that Pioneer owed. As a result Pioneer threatened to call a payment default against Marine Trade and Marine Trade made the net payment to Pioneer under protest.
Marine Trade brought proceedings for restitution of the $5 million payment. The court had to determine whether it should take into account events and circumstances after a payment date in determining whether a party satisfied the Section 2(a)(iii)(1) condition in relation to the payment date, or whether the party's position on the payment date alone is relevant.
The court concluded that the Section 2(a)(iii) condition of the 1992 ISDA Master Agreement is tested "once and for all" in relation to an amount payable by a party on the payment date for that amount. This rules out the possibility of a party curing an event of default after a payment date. Conversely, if a party satisfies the 2(a)(iii)(1) condition on the scheduled payment date, and then subsequently becomes subject to an event of default, the payment remains due as it was on the scheduled payment date.
The author notes that both of these conclusions are important where an ISDA Master Agreement is not closed out, notwithstanding a default. The author suggests that, to avoid the difficulties of interpretation parties may want to include wording to make it clear that:
- if a party satisfies Section 2(a)(iii) on a scheduled payment date, no account should be taken of its failure to satisfy Section 2(a)(iii) on any subsequent date in determining whether any obligation is due to it on that scheduled date; and
- if a party does not satisfy Section 2(a)(iii) on a scheduled payment date, then the effect of this is only to suspend any obligation that would otherwise be owed to it on that date until it satisfies Section 2(a)(iii).
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