Disrupting to Win BLB 31 4-5 (May-June)

Contents
page 78 General Editor’s note
Karen Lee LEGAL KNOW-HOW
page 80 ASK THE EXPERT
Disrupting to win — the business of adding value
through technology
Tania Mushtaq MARQIT
page 84 Financial System Inquiry: Part 2 — A lending
industry perspective on SMSF lending
Leonie Chapman LAWYAL SOLICITORS and Tim
Brown MORTGAGE AND FINANCE ASSOCIATION
OF AUSTRALIA
page 89 “Split executions” and s 127 of the Corporations
Act 2001
Dr Nuncio D’Angelo NORTON ROSE FULBRIGHT
AUSTRALIA
page 93 Lessons from Lavin v Toppi — contribution between
co-sureties
Leigh Schulz and Felicia Duan MINTER ELLISON
page 96 Griffin Energy Group Pty Ltd (Subject to Deed of
Company Arrangement) v ICICI Bank Ltd
Julie Talakovski and Michael Bridge HWL
EBSWORTH LAWYERS
page 98 Extensions and speciﬁcity: recent clariﬁcation from
the High Court of Australia on s 588FF orders for
voidable transactions
Amanda Carruthers LEWIS HOLDWAY LAWYERS
page 102 Book reviews
Anthony Lo Surdo SC 12 WENTWORTH SELBORNE
CHAMBERS
General Editor
Karen Lee
Principal and Consultant, Legal
Know-How
Editorial Board
Mark Hilton
Partner, Henry Davis York, Sydney
David Richardson
Partner, HWL Ebsworth Lawyers,
Sydney
Bruce Taylor
Solicitor
David Turner
Barrister, Owen Dixon West
Chambers, Melbourne
Nicholas Mirzai
Barrister, Banco Chambers, Sydney
John Mosley
Partner, Minter Ellison, Sydney
David Carter
Partner, DibbsBarker, Sydney
Samantha Carroll
Special Counsel, Clayton Utz,
Brisbane
John Naughton
Partner, King & Wood Mallesons,
Perth
Leonie Chapman
Principal Lawyer and Director,
LAWYAL Solicitors
2015 . Vol 31 No 4–5
Information contained in this newsletter is current as at May/June 2015

General Editor’s note
Karen Lee LEGAL KNOW-HOW
Our first Ask the Expert piece (in our previous issue)
was very well received. I am very pleased to learn that
many of our readers liked the idea of having such a
column, and enjoyed reading Ruth Neal’s (HWL Ebsworth
Lawyers) commentary on Australian Securities and
Investments Commission (ASIC) v The Cash Store.1
In this double issue, our expert is experienced legal
IT professional, Tania Mushtaq (Marqit). My question to
her relates to “fintech”. Following the recent Financial
Systems Inquiry (FSI), banking and finance lawyers are
hearing a lot about fintech. What exactly is fintech? Why
is it important? What should we know about it? Read our
Ask the Expert column to find out. Tania also shares
with us her pick of three technologies that should not be
underestimated when it comes to delivering measurable
results.
Staying on the subject matter of the FSI, our next
article is the much-anticipated Part 2 of Tim Brown
(Mortgage & Finance Association of Australia) (MFAA)
and Leonie Chapman’s (LAWYAL Solicitors) commen-
tary, this time on the final FSI report’s findings to
prohibit self-managed superannuation fund lending. Read-
ers will gain valuable insight as they learn more about
the lending industry’s response as expressed by MFAA.
What should you do where separate copies of a
document are signed by a company’s officers, purport-
edly under s 127(1) of the Corporations Act?2
There are
a number of views regarding whether such “split execu-
tion” satisfies the requirements of s 127(1) and (3) of the
Corporations Act. I am most delighted to have Dr
Nuncio D’Angelo’s (Norton Rose Fulbright) article to
shed light on split execution. Importantly, he answers the
question of how the conflicting views can and should be
dealt with in practice. Dr D’Angelo authored this article
in consultation with the other members of the Walrus
Committee, which composed of partners and senior
lawyers from the firms Allens, Ashurst, Herbert Smith
Freehills, King & Wood Mallesons and Norton Rose
Fulbright. This is the bulletin’s second article published
with the involvement of the Walrus Committee, and I
hope there will be more to come.
In the next part of our bulletin, we turn our focus to
recent case law. First, we will take a look at the case of
Lavin v Toppi3
regarding contribution between co-sureties.
Leigh Schulz and Felicia Duan (Minter Ellison) examine
this High Court decision and consider some of the
practical implications of the decision for co-sureties and
creditors.
The next case under the spotlight is Griffın Energy
v ICICI Bank.4
The co-authors of this case note are new
contributor, Julie Talakovski, and regular contributor,
Michael Bridge (HWL Ebsworth Lawyers). Find out
how the court’s interpretation and enforcement of the
terms of the contractual documents, in this case, letters
of credit and the sale agreement, resulted in harsh
consequences for the appellant.
Last but not least,Amanda Carruthers (Lewis Holdway
Lawyers) looks at two recent High Court decisions
regarding orders made under s 588FF(3) of the Corpo-
rations Act — Grant Samuel v Fletcher5
and Fortress
Credit v Fletcher.6
Among other things, the author
explains why these decisions on s 588FF orders for
voidable transactions are important from a banking and
finance perspective.
Our bulletin ends with two book reviews by Anthony
Lo Surdo SC. Mr Lo Surdo was on the bulletin’s
editorial board for almost 20 years, and I, as well as the
LexisNexis team, very much welcome his return. Should
you read the latest edition of the Annotated National
Credit Code7
or Ong on Subrogation?8
I would say yes,
and I encourage you to read the book reviews to decide
for yourself.
Happy reading!
Karen Lee
Principal and Consultant
Legal Know-How
karen.lee@LegalKnowHow.com.au
About the author
Karen Lee is the General Editor of the Australian
Banking & Finance Law Bulletin. She has also contrib-
uted to LexisNexis’s Australian Corporate Finance Law.
Karen established her legal consulting practice, Legal
Know-How, in 2012. She provides expert advice to firms
and businesses on risk management, legal and business
australian banking and finance May/June 201578

process improvement, legal documentation, regulatory
compliance and knowledge management. Prior to this,
Karen worked extensively in-house, including as Head
of Legal for a leading Australasian non-bank lender, as
well as in top-tier private practice, including as Counsel
at Allen & Overy and Clayton Utz.
Footnotes
1. Australian Securities and Investments Commission (ASIC)
v The Cash Store Pty Ltd (in liq) [2014] FCA 926.
2. Corporations Act 2001 (Cth)
3. Lavin v Toppi (2015) 316 ALR 366; 89 ALJR 302; [2015] HCA
4; BC201500378.
4. Griffın Energy Group Pty Ltd (Subject to Deed of Company
Arrangement) v ICICI Bank Ltd (2015) 317 ALR 395; [2015]
NSWCA 29; BC201500972.
5. Grant Samuel Corporate Finance Pty Ltd v Fletcher; JP
Morgan Chase Bank, National Association v Fletcher (2015)
317 ALR 301; 89 ALJR 401; [2015] HCA 8; BC201501286.
6. Fortress Credit Corporation (Aust) II Pty Ltd v Fletcher (2015)
317 ALR 421; 89 ALJR 425; [2015] HCA 10; BC201501284.
7. A Beatty and A Smith LNAA: Annotated National Credit Code
(5th edn) LexisNexis, 2014, ISBN 9780 409336160.
8. D SK Ong Ong on Subrogation, The Federation Press, 2014,
ISBN 978 1 86287 979 9.
australian banking and ﬁnance May/June 2015 79

ASK THE EXPERT
Disrupting to win — the business of adding
value through technology
Tania Mushtaq MARQIT
Question
Following the recent Financial Systems Inquiry, fintech is
something that banking and finance lawyers are talking
about. What is fintech, and what should banking and finance
lawyers know about it?
There is no doubt that we are living in a world where
clients are not only expecting expert legal advice but
also demanding value for money. This drove law firms
to shift to an innovative mindset. The status quo for law
firms of all sizes is no longer a state of rest, but a
momentary state of adjustment to new ways of provid-
ing top legal services. Clients are in control of their own
experiences and organisations — including law firms
and their clients, such as banks — have to deliver
innovative solutions in order to meet the world’s ever-
changing expectations. Since client loyalty is only as
good as a client’s last experience with a firm, and the
banking and finance industry has made it a priority to go
beyond just the product and offer relevant solutions,
banking and finance lawyers who can value added and
deliver desirable experiences are critical for client reten-
tion and acquisition. Given this scenario, banking and
finance lawyers need to disrupt themselves and recognise
that the rapid technological advances can play a big part
in delivering value added services to the constantly
connected omniscient clients, especially where the client
is a major financial institution.
For the banking and finance industry, new develop-
ments and innovations in financial services technology
(fintech) have exploded. Since 2008, there has been a
proliferation of fintech start-ups with their numbers
almost tripling globally in 2014.1
At the same time
global venture capital investment in fintech start-ups has
reached almost US$3 billion.2
These start-ups are focused
on developing innovative technologies for the banking
and finance industry creating an aggressively competi-
tive landscape for the incumbents.
Fintech was in the spotlight following the release of
the final Financial Systems Inquiry (FSI) report. The
report had a focus on innovation in the financial services
industry and it identified technology-related innovation
has the potential to transform the sector as long as policy
and regulatory settings were amended to ensure techno-
logical change was not hindered.3
Disruptive industries such as fintech are supposed to
find quicker, simpler ways of doing things, clearing out
the dead wood in the process. In Australia, banking and
finance industry is not on the back foot but fast becom-
ing a proactive player in development of disruptive
technologies in order to future proof themselves. There
is an increased focus on identifying and addressing
client needs and delivering targeted solutions through
implementation of digital strategies. They are enabling
fintech start-ups in order to gain foresight into innova-
tive technologies that can be snapped up ahead of
competitors to add value to the customers. Banking
lawyers have a significant opportunity here to join such
ventures, take advantage of the clients’ digital interac-
tion and identify and implement relevant technologies
that will help them deliver more for less for an enhanced
customer experience.
As the banks are fast evolving from being immutable
to being agile and progressive, banking lawyers don’t
have much of an option but to evolve with the banks.
The new Stone and Chalk technology hub is evidence of
the financial industry’s commitment to innovation. Offi-
cially opening in May 2015, this hub provides fintech
start-ups subsidised rent and helps them investigate
venture capital opportunities. It is backed by some of
Australia’s largest financial institutions, technology giants,
retailers and also by one law firm, Allens. With over a
100 companies that can be classified as fintech start-ups
just in Sydney alone, this project will make a significant
contribution to the financial industry’s capabilities keep-
ing it in step with the phenomenal rise in the global
fintech investment. Given the very nature of banking
lawyers work that involves piles of documents, endless
searches and information exchange, this opportunity will
help find and fund technologies that may deliver pro-
ductivity gains, improve collaboration and allow diver-
sification of services for a sustained competitive advantage.

So which technologies should banking lawyers explore
and embrace? Technology that can help lawyers stay in
step with the evolving banking and finance industry goes
beyond document management and email. More than
ever before, lawyers need to stay relevant to their clients
to compete with the offerings of emerging non-legal
firms and future proof themselves. In order to do so, they
need to drill down into their clients’ needs in the context
of changing lifestyles, cost of living, increasing globalisa-
tion and mobilisation, technology preferences and their
social media behavior. While innovation in fintech will
continue to deliver technologies that will help financial
services and banking lawyers increase their billable
hours and reduce waste, there are several technologies
available today that can be leveraged to create signifi-
cant competitive advantages. Here is my pick of three
technologies that cannot be underestimated when it
comes to delivering measurable results:
1. Analytics and customer data: There is a vast
range of CRM solutions that can be instrumental
in gathering and analysing client data. Analytics
form the bases of digital initiatives being embraced
and implemented by all major banks in Australia.
Gathering and analysing client data allows law-
yers the capability to easily create and maintain a
clear view of clients right from the first meeting
through matter management and ongoing client
care. Analytics in this day and age are digital gold
because they provide actionable insights and reveal
clients’ behavioural patterns. These patterns are
valuable in development of innovative value added
offerings as well as sharing native content that
resonates with the clients. Understanding clients at
a granular level allows banking lawyers to tailor,
price and deliver their services to meet their
clients’ expectations which in turn results in reten-
tion and also acquisition through word of mouth.
2. Social media: Social media is a powerful tool.
Lawyers who understand and harness the formi-
dable impact of social media are not only able to
reach audiences worldwide in real time, but they
are also able to attract the next generation of
clients. Moreover, when it comes to value for
money, social media is predominantly free. Plat-
forms like Twitter allow lawyers to share valuable
and informative content with their followers with
minimal effort as well as interact with audiences
and gather information about customer sentiment.
The beauty of Twitter is that while links can be
shared in tweets, the message can only be deliv-
ered in 140 characters making it easy to read
especially on mobile devices. Such platforms
allow lawyers to establish themselves as thought
leaders resulting in improved customer perception
of the firm. Social media platforms such as Facebook,
LinkedIn and Twitter, also provide detailed real
time analytics including the most viewed updates
and most active followers in order to recalibrate a
firm’s direction and messaging and identify lucra-
tive opportunities, again with minimal cost.
3. Apps for workflows: Just like the rest of the world,
mobility is a reality for lawyers and it is fast
becoming the only way to get more done in less
time increasing billable time — which is what
every lawyer wants to do. It is important to
explore which apps can deliver the most value
when it comes to seamless flow of information
that is also secure. Apps like Whatsapp allow
secure collaboration because all communication
by default is encrypted, and this app is also
available at no charge. There are several other
apps on the market that may not be free but are
still affordable and available through a monthly or
annual subscription. Paid apps generally have
better functionality, do not contain advertising or
annoying banners popping up as work is being
done while connecting with other apps for seam-
less flow of information. Given that banking
lawyers are consistently reviewing and sharing
documents, apps that allow document annotation,
secure document signatures, sharing for comments
and secure storage in the cloud for access any-
where, anytime and from any device deliver tan-
gible productivity gains all without the need to
print documents.
References:
CustomerEngagementforlegalindustry:www.highq.com
KPMG report on Fintech: www.kpmg.com
Innovation in legal industry: www.americanbar.org
Fintech in Australia: www.startupbootcamp.org
Fintech start up scene in Australia — Chalk and
stone: www.smh.com.au
Fintech globally: www.banktech.com
Fintech in UK: www.forbes.com
Allens and involvement in Chalk and Stone:
www.australasianlawyer.com.au

Tania Mushtaq
Principal Consultant
Marqit
Twitter @tanmushi
About the author
Tania Mushtaq is the founder and Principal Consultant
of Marqit, a marketing communications consultancy for
IT industry. Tania has worked and written extensively in
the space of IT with specific focus on cybersecurity,
mobility, cloud, information management and genera-
tional differences. She also ghost writes for senior IT
executives and has worked with clients across Asia
Pacific to develop business positioning and differentia-
tion strategies. Tania holds an MBA from MGSM.
Footnotes
1. J Camhi, Report: Global FinTech Investment Will Grow to at
Least $6 Billion by 2018, 2014, www.banktech.com.
2. Above, n 1.
3. A Coyne, Australia’s fintech landscape goes under the micro-
scope, December 2014, www.itnews.com.au.

Financial System Inquiry: Part 2 — A lending
industry perspective on SMSF lending
Leonie Chapman LAWYAL SOLICITORS and Tim Brown MORTGAGE AND FINANCE
ASSOCIATION OF AUSTRALIA
Background
This is the second article in our two-part series
covering a lending industry perspective on the Financial
System Inquiry (FSI). In Part 1,1
we explored the
findings by the FSI panel as they apply to the mortgage
broking and lending industry and in particular, heard the
views of Tim Brown, Chairman of the Mortgage and
Finance Association of Australia (MFAA) on the Final
Report’s findings in relation to competition in the
banking sector. In this second article, we explore the
FSI’s recommendations to prohibit self-managed super-
annuation fund (SMSF) lending, and the lending indus-
try’s response2
as expressed by MFAA.
To recap, in late 2013 the Treasurer released draft
terms of reference for the FSI, charged with examining
how the financial system could be positioned to best
meet Australia’s evolving needs and support Australia’s
economic growth. The intension of the FSI is to estab-
lish a direction for the future of Australia’s financial
system. In July 2014 the committee produced its Interim
Report (Interim Report), dealing with issues relevant to
credit advisers such as the substantial regulatory reform
agenda, and relevant to this article, the restoration of a
ban on SMSF lending. In November 2014 the FSI Final
Report3
was published (Final Report) taking into account
industry and expert responses, including from the MFAA.4
In this article we explore the Final Report recommen-
dation for a prohibition on SMSF lending through
Limited Recourse Borrowing Arrangements (LRBAs),
which MFAA and other industry participants challenge
for the reasons outlined below.
Interim Report on SMSF leverage risk
The Interim Report documented findings that the
number of SMSFs has grown rapidly, now making up
the largest segment of the superannuation system in
terms of number of entities and size of funds under
management, which are expected to continue to grow.
The use of leverage in SMSFs to finance asset purchases
is also growing, with the proportion of SMSFs, while
still small, increasing from 1.1 percent in 2008 to 3.7
percent in 2012. The Interim Report observes that,
allowing the use of leverage in SMSFs to finance assets
to grow “may create vulnerabilities for the superannua-
tion and financial systems”, as leverage magnifies risk
“both on the upside and downside.”5
While leverage was
originally prohibited in superannuation in most situa-
tions, in 2007 the Superannuation Industry (Supervision)
1993 (SIS Act) was amended to allow all SMSFs to
borrow.
The key policy option put forward by the FSI’s
Interim Report was to restore the general prohibition on
direct leveraging of superannuation funds on a prospec-
tive basis. It argues the general prohibition was put in
place for sound reasons, including one highlighted
during the Global Financial Crisis (GFC) where it
demonstrated the benefits of Australia’s almost entirely
unleveraged superannuation sector, which the Interim
Report claims resulted in minimal losses in the super-
annuation sector. This had a stabling influence on the
financial system according to the Interim Report,6
one of
the key objectives of the FSI.
MFAA Submission in response to FSI’s
Interim Report
While Mr Brown and the MFAA acknowledge the
Interim Report’s comments that borrowing in SMSFs
are often associated with poor advice by credit and
financial advisers and accountants related to establishing
an SMSF as part of a geared investment strategy,7
in its
submissions to the Interim Report MFAA expresses a
view that rather than prohibit direct SMSF leveraging,
training and education of advisers and accountants is a
better alternative, including continuing initiatives such
as the MFAA SMSF Lending Accreditation. This would
help ensure consumers are better protected by qualified
advice from all the professionals in the SMSF process,
including SMSF lending. The introduction of MFAA’s
new SMSF Lending Accreditation program was moti-
vated in 2012 after it recognised the gap in understand-
ing of SMSF lending by quality advisers, and a desire to
ensure they were properly educated in understanding its
risks and pitfalls.8
Mr Brown describes one of the key

outcomes of the program is to develop credit advisors to
be competent in relation to LRBAs, to better be able to
advise on the appropriateness and suitability of this type
of lending from a credit perspective.
Mr Brown describes how at an institutional level,
lenders have also been diligent in creating SMSF lend-
ing products that will protect SMSF trustees and ben-
eficiaries, while at the same time providing the flexibility
to achieve SMSF objectives. For example, most major
lenders require a Financial Advice Certificate by finan-
cial advisers or accountants to certify that the lending is
appropriate for the trustee, and have started to introduce
a minimum fund balance. Lending criteria is also tight-
ening, with lenders mortgage insurers requiring proper-
ties to be funded with LRBA’s to be at least 12 to 18
months old, which reduces the risk of off-the-plan
property sales from property developers and therefore
reduces asset value. All lenders require property valua-
tions and many a maximum loan to value ratio of 80%
for residential property, to help improve the SMSF cash
flows and improve liquidity within the fund. Finally,
responsible lending guidelines are followed by lenders,
when assessing suitability of SMSF lending products.
Final Report recommendations on direct
borrowing for LRBAs
In the Final Report,9
despite submissions from indus-
try arguing against it, including the above arguments
from MFAA, the FSI recommended the removal of the
exception to the general prohibition in direct borrowing
by SMSF from LRBAs under the SIS Act.10
The section
the FSI seeks to remove, currently allows SMSFs to
borrower to purchase assets directly into the SMSF
using LRBAs. The Final Report lists objectives includ-
ing preventing the “unnecessary build-up of risk in the
superannuation system and financial system more broadly”
and to fulfil the “objective for superannuation to be a
savings vehicle for retirement income, rather than a
broader wealth management vehicle.”11
In essence, the Final Report is concerned that bor-
rowing even with LRBAs will magnify gains and losses
from fluctuations in the price of assets held within
SMSFs, and particularly so soon after the GFC. This
could increase the risk of large losses in funds, where
lenders can charge higher interest rates and require more
personal guarantees from trustees. In this particular
example, with a significant reduction in value of the
asset and personal guarantees, the Final Report describes
a likely outcome that the trustee would sell other assets
in the fund to repay a lender, which could mean
ineffective limiting of losses flowing from one asset to
others, either inside or outside the SMSF.12
In many cases, SMSFs were set up to achieve a
diversity of assets, mostly in the form of shares, money
and real estate.13
As such, the Final Report believes that
selling other assets to pay a loan might concentrate the
asset mix of a small fund, which reduces the benefits of
diversification and increases risk to the SMSF. The
ultimate end result of a failure of superannuation like
this, the Final Report believes, will be a transfer of
downside to taxpayers, through the provision of the Age
Pension. Finally, the FSI is not keen on borrowing by
SMSF where it allows members to circumvent contri-
bution caps and accrue large assets in the superannuation
system in the long run.14
Industries views on banning SMSF lending
Predictably the recommendation to ban SMSF LRBAs
has been attacked from many sectors, with some point-
ing to the current low volumes, and others, like MFAA,
stating that lending standards should be tightened and
advice requirements toughened. Many Accountants and
Financial Advisers join the voice of MFAA in disagree-
ing with the FSI’s recommendation to ban direct bor-
rowing in SMSFs, predicting intense lobbying for and
against LRBAs in 2015 and strong resistance to the
recommended ban.15
In a joint submission to the Final
Report by MFAA, Association of Financial Advisers,
Financial Planning Association of Australia and Com-
mercial Asset Finance Brokers Association of Australia,
MFAA reminds the FSI of the heavy government regu-
lation and self-regulation over the SMSF industry and
outlines that the sector has been assessed favourably by
ASIC and the ATO, with no hint of any systemic risk
having been raised in relation to SMSF lending.16
Regarding personal guarantee risk
Regarding the Final Report’s comments that there is
a frequent use of personal guarantees to protect Lenders
against the possibility of large losses and this could
potentially reduce the effectiveness of the SIS Act17
restrictions, this is unlikely to be the case in many
scenarios involving LRBAs, according to Mr Brown.
The SIS Act18
prohibits any legal right of recourse
against the assets of the fund should the trustees default
on the loan. The rights of the lender against the fund as
a result of default on the borrowing are limited to rights
relating to the acquirable asset.19
Some industry submis-
sions even call for a ban on personal guarantees,
however MFAA’s joint submission highlights that the
removal of personal guarantees will result in Lenders
lowering LVRs for LRBAs, meaning that SMSFs will
need to contribute more of the purchase price for the
property, impacting the ability of SMSF to diversify its
asset mix and restricting the availability and cost of
finance. Given the very low default rate of LRBAs,
MFAA does not believe that the removal of member
personal guarantees is justified.20

Regarding diversification
To the Final Reports comments on diversification,
most in the industry, including Mr Brown and the
MFAA, agree that there are some dangers of SMSF
lending, and in particular if the weighting of property in
SMSFs is too heavy then this could reduce the diversi-
fication benefit of leveraging. An SMSF is essentially
about having liquid assets to fund retirement, and
therefore having assets tied up in property could result in
SMSF portfolios that are predominantly based in real
estate rather than cash or some other form of greater.21
However, MFAA also believes that a restriction in
maximum LVR to 80% will help address the diversifi-
cation risk the FSI has raised. In fact, without gearing, a
lot of SMSFs may be forced to access real estate
exposure through managed funds and their portfolios
could be restricted only to shares and money.22
Some
submissions describe a key differences between “tradi-
tional style” leveraged investments and LRBAs, claim-
ing a lower level of systemic risk posed by direct SMSF
leverage compared with direct leverage outside of super-
annuation.23
Many in the industry, including Mr Brown, believe
that the use of LRBAs is likely to result in higher, and
not lower, levels of asset diversification and lower, and
not higher, levels of investment risk, as they enable
SMSF investors to reduce their exposure to asset classes
which historically SMSFs have held over exposed posi-
tions, such as listed securities and cash.24
For example,
according to MFAA’s joint submission in response to the
Final Report, due to the long term performance and
stability of property, if SMSF borrowing is banned,
SMSFs with moderate balances will still invest in direct
property using cash and such investments will be at the
expense of fund diversification.25
Further, banning LRBAs, according to MFAA’s joint
submission, will simply channel SMSFs into less regu-
lated, riskier structures that also use leverage, such as
unit trusts, warrant products and derivatives. To the
contrarily, LRBAs are within the oversight of the ATO
and must comply with strict rules set out in the SIS Act.
Despite any ban, SMSFs would also still be able to
invest in management investment funds holding direct
property. As superannuation is compulsory in Australia,
individual should have the discretion regarding where
and how to invest those savings and SMSF lending is
essential to consumer choice and competition, to allow
people to build their retirement savings in a manner that
suits their needs and preferences. Finally, banning SMSF
lending could also have a significant impact on small
businesses that use leverage to assist their SMSF to
purchase their business property, which is then leased to
a related trading entity.26
Possible alternative solutions suggested by industry
As demonstrated, Mr Brown believes the impact on
banning SMSF lending will be significantly felt, and he
and the MFAA believes that better education and train-
ing for those involved in the SMSF lending industry,
measures to protect and license LRBA advice, and the
continue restriction of lending parameters for SMSF
lending, are better alternatives to prohibiting SMSF
lending completely. He also believes that in order to give
Australians confidence in superannuation it is important
that regulation in the industry is stable. Many trustees
enter into long-term investments, and making regular
changes to the superannuation laws means that trustees
lack the necessary certainty to make such long term,
stable investments.27
At the very least, Mr Brown
believes, the LRBA provisions should not be repealed
without first implementing proposed regulations and
protection measures, and after some time, assessing their
effectiveness. MFAA also believes banning borrowing
from related parties could assist reduce the risk, and
require borrowing to be from a licenced lender, with
sound credit policies and a requirement for independent
financial and legal advice for the trustee.
Unfortunately for industry, however, there is a risk
that it may face a difficult task lobbying to retain SMSF
lending against the FSI’s recommendations to ban it.
Many submissions put forward by industry wish to
improve the superannuation system and seek to weigh
up the costs versus benefit of SMSF funding, however
according to some, very few have responded directly to
the actual concern of the FSI.28
The terms of reference
of the FSI are to promote a competitive and stable
financial system that contributes to Australia’s produc-
tivity growth, and to consider the threats to stability of
the Australian financial system, including superannua-
tion. The review did not consider the potential benefits
to superannuation leverage or the inappropriateness of
advice. It was set up to ensure the prevention of
unnecessary build-up of risk in the superannuation and
financial system and to fulfil the objective for superan-
nuation to be a savings vehicle for retirement income.29
The Final Report noted some of these alternatives to
address the risk surrounding SMSF borrowing and the
industry goal to provide funds with more flexibility to
pursue alternative investment strategies, however found
that some alternatives would impose additional regula-
tion, complexity and compliance costs on the superan-
nuation system.30
Despite this, according to MFAAs joint submission to
the Final Report, the FSI has not provided any evidence
of risk, damage or loss arising from LRBAs. The
evidence cited in support of the ban is anecdotal at best,
according to Mr Brown. In any case, as mentioned

above the MFAA believes that a ban on SMSF lending
to avoid leveraging will be ineffective because SMSFs
will still be able to invest in derivatives and other traded
products with built in leverage, and if the underlying
company or investment scheme fails, there is no residual
value on the asset. This, however, is not the case with
real property, which is the primary asset acquired
through the use of LRBAs. Even if property values fall,
the asset itself is still a residual value and it is often hard
for yields to be materially adversely affected, even
during the GFC. MFAA’s joint submission explains how
real property has an added benefit of providing capital
growth as well as an income stream during retirement
(for example, rental income on investment properties),
where dividends are not and therefore shareholdings
may need to be sold when the fund moves into pension
mode.31
Conclusion
The government is currently considering the recom-
mendations of the FSI and is accepting consultations,
with plans to respond sometime during 2015.32
In
summary, the FSI panel was mostly concerned that
leverage in the superannuation system, combined with
leverage in the banking sector, will weaken the financial
system and limit the ability to respond to the next GFC.
As leverage cannot be removed from the banking sector,
the only response is to ban it in the superannuation
system.33
In making its recommendation, the FSI believes
that the ability for SMSFs to borrower funds may, over
time, erode the strength of the Australian superannuation
industry, and could contribute to systemic risks to the
financial system if allowed to grow at high rates.34
According to FSI, prohibiting direct borrowing by SMSF
would be consistent with the objectives of superannua-
tion being a savings vehicle for retirement income, and
would in the views of the FSI, preserve the strengths and
benefits of the superannuation system for individuals,
the system and the economy.35
In particular, they expressed
concern that if SMSFs do not meet the retirement
objectives the government hopes for, they will then have
to fall back on the public purse to fund retirement
through taxes.36
So far many of the banking and advisory industries
appears to disagree with the ban and it will be interesting
to see how hard MFAA and other industry bodies will
lobby for LRBAs in 2015. Mr Brown and the MFAA
believe that Credit Advisers and Lenders are acutely
aware of the potential negative implications of LRBAs
and have introduced policies to substantially reduce the
risk presented to clients, and ensure that trustees have
success with SMSF lending. With the work being
undertaken by the MFAA to up skill members on
LRBAs, and the proactive initiatives undertaken by
Lenders to ensure responsible Lending, the restoration
of the general prohibition on direct leverage of superan-
nuation funds in the views of the MFAA, is inappropri-
ate. Given the broad number of stakeholders who would
be impacted by a ban on SMSF lending, the potential
risks to the financial system if it is not banned according
to the Final Report, and the currently very low default
rate of LRBAs according to MFAA, it will be interesting
to see if the government pursues the prohibition, and if
it does, the flow on consequences to the banking,
advisory and superannuation industries.37
Leonie Chapman
Principal Lawyer and Director
LAWYAL Solicitors
leonie.chapman@lawyal.com.au
www.lawyal.com.au
About the author
Leonie Chapman’s experience extends to banking and
finance, consumer credit and mortgage lending, contract
negotiation, trade practices and fair trading legislation,
intellectual property and trade marks, and corporate
and financial services. After completing her Bachelor of
Laws and Bachelor of Commerce in 2002, Leonie went
on to work both in private practice and as senior
in-house lawyer supporting a specialist lender, and then
for six years with Macquarie Bank Ltd. Having achieved
a Master of Laws in 2009 specialising in banking and
finance law, Leonie’s main focus now as Principal of
LAWYAL Solicitors is on regulation and compliance for
banking and financial institutions.
Tim Brown
President
Mortgage Finance Association of Australia
(MFAA)
TimB@vow.com.au
About the author
Tim Brown is the Chairman of the Mortgage and
Finance Association of Australia (MFAA). He has worked
in the banking and finance industry for over 30 years
and has held senior management positions in organisa-
tions such as Macquarie Bank, LJ Hooker, Suncorp,
Aussie Home Loans and AVCO Finance (now GE
Capital). Tim’s industry experience has seen him suc-
cessfully establish and own LJ Hooker Home Loans as a
master franchise which was acquired by LJ Hooker in
2003. Tim is currently the CEO of Vow Financial,
Australia’s sixth largest mortgage aggregator. He has an
MBA and also completed a Diploma in Mortgage
Lending and Business Management and a Diploma in
Financial Planning.

Footnotes
1. L Chapman and T Brown, Financial System Inquiry: Part 1 —
A lending industry perspective on competition, LexisNexis
Australian Banking & Finance Law Bulletin, (2015) 31(1) BLB
at p 4.
2. Submission by Mortgage Finance Association of Australia in
response to Financial System Inquiry, dated March 2014.
3. Financial System Inquiry, Final Report, Treasury, November
2014.
4. Mortgage Finance Association of Australia, submission in
response to Financial System Inquiry, Interim Report, August
2014.
5. Financial System Inquiry, Interim Report, Treasury, July 2014,
at p 2–116.
6. Above, n 5, at p 2–117.
7. Australian Securities and Investments Commission (ASIC)
2013, SMSFs: Improving the quality of advice given to
investors, Report 337, ASIC, Sydney.
8. Mortgage Finance Association of Australia, submission in
response to Financial System Inquiry, dated August 2014.
9. Above, n 3, at p 86.
10. Superannuation Industry (Supervision) Act 1993 (Cth), s 67A.
11. Above, n 3, at p 86.
12. Above, n 3, at p 86.
13. N Bendel, Finance broking associations at odds over SMSF
borrowing, SMSF Adviser, 8 January 2015.
14. Above, n 3, at p 86.
15. M Masterman, Accountants reject ban on SMSF borrowing:
poll, SMSF Adviser, January 2015.
16. Joint Submission by Mortgage Finance Association of Austra-
lia, Association of Financial Advisers, Financial Planning
Association of Australia and Commercial Asset Finance Broker
Association of Australia in response to Financial System
Inquiry Final Report, dated March 2015.
17. Above, n 10, s 67A.
18. Above, n 10, s 67A.
19. K Taurian, Cavendish disputes FSI stance on borrowing, SMSF
Adviser, 9 April 2015.
20. Above, n 16.
21. Above, n 13.
22. Above, n 13.
23. Above, n 19.
24. Above, n 19.
25. Above, n 16.
26. Above, n 16.
27. Above, n 16.
28. L Smith, Have people got the FSI SMSF LRBA recommenda-
tion wrong? Sole Purpose Test, 2 April 2015.
29. Financial System Inquiry’s terms of reference dated 20 Decem-
ber 2013.
30. Above, n 5, at p 2–116.
31. Above, n 16.
32. Above, n 28.
33. Above, n 29.
34. Above, n 5, at p 2–116.
35. Above, n 3, at p 88.
36. Minter Ellison Lawyers, FSI must focus on SMSF risks, News,
accessed in April 2015.
37. Above, n 16.

“Split executions” and s 127 of the
Corporations Act 2001
Dr Nuncio D’Angelo NORTON ROSE FULBRIGHT AUSTRALIA
Introduction — the issue
This brief article concerns the execution of a docu-
ment by a company, purportedly under s 127(1) of the
Corporations Act 2001 (Cth) (the Act), where separate
copies of the document are signed by the company’s
officers. This is sometimes described as “split execu-
tion”. There are differing views among lawyers in the
market as to whether split execution satisfies the require-
ments of s 127(1) and (3) of the Act.
Views vary from acceptance that split execution does
satisfy s 127 (the liberal view) to the opposite, ie, that it
does not (the conservative view). Some take the view
that the position is unclear and will qualify their advice
or formal closing opinions accordingly (the cautious
view). Positions differ between law firms and even
within law firms and are often quite strongly held.
It is important to note that in most cases the question
is not whether the document has been duly executed but
whether the statutory assumption as to due execution in
s 129(5) is available.1
This may have an impact on any
“due execution” opinion that is to be given by a law firm
involved in the transaction but, importantly, it can also
affect settlements and financial closings.
This article does not recommend or favour any
particular view over the others. Rather, the purpose is to
highlight the issue to the market. It is important that
lawyers recognise that there is a disparity of views and
that this needs to be factored into settlements and
closings and discussions on closing opinions. The poten-
tial difficulties can be eliminated, or at least managed, if
the issue is exposed early enough in a transaction.
What is “split execution”?
Section 127(1) of the Act provides that:
A company may execute a document without using a
common seal if the document is signed by:
(a) two directors of the company; or
(b) a director and a company secretary of the company.2
That supports the statutory assumption in s 129(5) of
the Act, which provides (as relevant) that:
A person may assume that a document has been duly
executed by the company if the document appears to have
been signed in accordance with subsection 127(1).
This, in turn, can support the “duly executed” para-
graph in legal opinions (when included).
In some instances, the two officers signing a docu-
ment for a company will sign different copies of the
document, usually because they are physically located in
different places at the time. This results in the signature
of one officer being on one copy of the document and the
signature of the other officer being on a separate copy.
Alternatively, it could result in the original signature of
one officer being on a document that bears a faxed or
PDF scanned signature of the other officer.3
In essence, the issue is whether the references to “the
document” in s 127(1) and to “a document” in s 129(5)
are satisfied where execution is split across two physical
copies of a document. If so, all is well. If not, then the
statutory assumption as to due execution in s 129(5) will
not be available.4
The effect of Re CCI Holdings Ltd
There is only one reported decision to date which has
considered a document affected by split execution: Re
CCI Holdings Ltd.5
In that case, CCI Holdings applied to the Federal
Court of Australia for orders approving a scheme of
arrangement under Ch 5 of the Act. One of the scheme
documents was a deed poll which had been signed by
way of split execution by two officers of CCI Holdings.
Emmett J stated in the judgment:6
I expressed some reservation as to whether execution of
two counterparts of a document satisfies s 127(1) of the
Act. That section provides that a company may execute a
document without using a common seal if the document is
signed by two directors of the company or a director and a
company secretary of the company. Under s 127(3), a
company may execute a document as a deed if the
document is expressed to be executed as a deed and is
executed in accordance with s 127(1).
The reservation that I had is that s 127(1) may be construed
as requiring a single document to be signed by the two
directors or the director and secretary. In principle, how-
ever, I can see no reason why that should be, so long as the
two counterparts are treated as a single instrument and that
instrument is delivered as is contemplated by the Convey-
ancing Act 1919 (NSW). In the circumstances I am satisfied
that the deed poll has been executed on behalf of the
offeror.

While some are of the view that this case has settled
the matter, others are not. The specific point regarding
split execution of the deed poll was not dealt with at
length or in detail in the judgment.7
How the conflicting views can affect
settlements and closings
This conflict of views can disrupt a settlement or
closing, for example, where a lawyer who takes the
conservative view refuses to accept a document executed
via split execution, or will only accept it with evidence
of actual authority of the signatories. In the case of a
deed, without the benefit of s 127(3), the lawyer may
demand that the document be re-executed in some other
way to satisfy the general law requirements for deeds.
Even where a lawyer takes the cautious rather than the
conservative view and accepts the document, the addressee
of his or her opinion may not accept the qualification.
Clearly, this can create undue stress at a critical time in
a deal. In extreme cases, it can delay or even derail a
settlement or closing.
How the conflicting views can and should
be dealt with in practice
In practice split executions only cause difficulties
where there is a difference of opinion among the lawyers
involved in a transaction. Until the matter is resolved by
the courts or Parliament, lawyers should, as a matter of
professional courtesy, acknowledge and respect the views
of others and, if necessary, explain to clients that some
lawyers may qualify their legal opinions or not accept
split execution at all. There is little to be gained by
lawyers bickering over this issue at the expense of
clients, who may perceive it as a technical legal matter
that the lawyers should simply “sort out”.
If the parties are contemplating execution of any
document under s 127 and there is a chance that split
execution may be necessary, then at the earliest oppor-
tunity the parties should discuss whether that is accept-
able to all concerned. Common sense dictates that the
discussion should be initiated by the lawyer acting for
the party who is to sign under s 127. That discussion
should then lead to agreement as to the way forward and
should also assist in settling the form of the opinion in
relation to due execution.
In any event, the earlier the issue is dealt with, the
better the outcome for all involved.
Dr Nuncio D’Angelo
Partner
Norton Rose Fulbright Australia
nuncio.dangelo@nortonrosefulbright.com
www.nortonrosefulbright.com
About the author
Nuncio D’Angelo is Head of Banking and Finance with
global law firm Norton Rose Fulbright in Australia. He
is widely published and has lectured at both the under-
graduate and postgraduate levels at several Australian
universities. Nuncio holds an LLM and PhD in law from
Sydney University.
This article was prepared by the author in consultation
with the other members of the Walrus Committee, which
is composed of partners and senior lawyers from the
firms Allens, Ashurst, Herbert Smith Freehills, King &
Wood Mallesons and Norton Rose Fulbright.That Com-
mittee meets regularly to discuss issues of current
importance in legal practice in the banking & finance
market with the objective of suggesting solutions. Noth-
ing in this article should be taken as legal advice.
Footnotes
1. However, if the document is intended to operate as a deed, the
issue of due execution as a deed does arise. Without the
assistance of s 127(3), execution of a deed by a company
without using a common seal is a complex matter.
2. Section 127(3) then provides (as relevant) that “A company
may execute a document as a deed if the document is expressed
to be executed as a deed and is executed in accordance with
subsection (1)”.
3. This occurs when the first officer signs the document, then
emails or faxes the signed document to the second officer, who
signs the emailed or faxed version.
4. And, if the document is to be a deed, the formal requirements
for execution as a deed may not be satisfied. It is worth noting
that, in our view, the usual “Counterparts” clause in the
boilerplate provisions of a document does not fix this problem
— we are here concerned about whether a counterpart to which
that clause can apply has actually been created in the first place
by one of the parties.
5. Re CCI Holdings Ltd [2007] FCA 1283; BC200707556.
6. Above, n 5, at [6]–[7].
7. After noting that “[s]ection 127(1) does not require that the two
parties who sign do so in each other’s presence”, Dr Nicholas
Seddon has recently argued that “they must both sign the same
document because due execution of a document by a company
under this subsection requires two signatures … Where two
signatures are required to complete the execution, it is not

sufficient that they appear on different counterparts or copies of
the document because no one counterpart or copy would be
properly executed by the company under s 127(1)”: N Seddon,
Seddon on Deeds (The Federation Press, 2015) at p 69. He does
not, however, cite Re CCI Holdings Ltd in his discussion.

Lessons from Lavin v Toppi — contribution
between co-sureties
Leigh Schulz and Felicia Duan MINTER ELLISON
Introduction
Co-sureties should be aware that the extent of their
liability may not necessarily begin and end with the
creditor.
In the recent High Court decision of Lavin v Toppi,1
the court unanimously confirmed that a covenant not to
sue provided by a creditor in favour of one guarantor
does not extinguish the liability that exists between
co-guarantors. If one co-guarantor pays a disproportion-
ate amount of the guaranteed debt, they are entitled
(absent any express agreement in the guarantee or a
settlement agreement to the contrary) to contribution in
equity from any other co-guarantor under the guarantee,
even if that co-guarantor is the recipient of a covenant
not to sue from the creditor.
This article examines the decision of the High Court
in Lavin v Toppi and considers some of the practical
implications of the decision for co-sureties and creditors.
Background
Ms Lavin and Ms Toppi were the directors of Luxe
Studios Pty Ltd (Luxe). Luxe borrowed the sum of
$7,768,000 from National Australia Bank Ltd (NAB) for
the purposes of running a photographic studio business.
Lavin and Toppi in their personal capacities (among
other associated entities) provided a joint and several
guarantee of the loan in favour of NAB.
Luxe went into receivership and NAB enforced its
security over property owned by Luxe. The proceeds of
that enforcement, however, were insufficient to dis-
charge the loan and so NAB claimed against each of
Lavin and Toppi in their personal capacities under the
guarantee.
Lavin cross-claimed against NAB on the basis that
the guarantee was procured in unconscionable or unjust
circumstances. A deed of release and settlement was
entered into by both parties, with Lavin agreeing to pay
to NAB a sum of approximately $1.73 million. Under
that deed, Lavin agreed not to pursue the cross-claim
and NAB covenanted not to sue Lavin in respect of the
guarantee.
Toppi later sold her home and used some of the
proceeds (approximately $2.9 million) to discharge her
obligations under the guarantee. Toppi commenced pro-
ceedings against Lavin for contribution in the amount of
$773,661.04, representing half of the difference between
their respective payments to NAB. In response, Lavin
argued that she and Toppi did not have “coordinate
liabilities” (that is, liabilities of the same nature and to
the same extent) as a result of NAB’s covenant not to
sue; in short, Lavin claimed that Toppi’s liability in
respect of the guarantee was enforceable, but Lavin’s
was not.
Relying on the decision of the New South Wales
Court in Carr v Thomas,2
the primary judge held that
NAB’s covenant not to sue had no bearing on the
equitable right of contribution that existed between
Lavin and Toppi.3
This line of reasoning was upheld by
both the Court of Appeal4
and the High Court.
Coordinate liabilities
A “coordinate liability” arises when two or more
obligors share a legal obligation to a third party. The
liability must be “of the same nature and to the same
extent”.5
Where coordinate liabilities exist, one obligor
can seek contribution from the other obligor(s) in order
to reduce or offset their liability where it is dispropor-
tionate.
Lavin claimed that her liability under the guarantee
was not coordinate with Toppi’s liability by reason of
NAB’s covenant not to sue. The High Court, however,
affirmed the Court of Appeal’s finding that a creditor’s
covenant not to sue does not extinguish an existing
coordinate liability.
The equitable doctrine of contribution
The equitable doctrine of contribution aims to pre-
vent the unjust enrichment of one co-surety at another
co-surety’s expense. The burden of suretyship should be
placed equally on co-sureties so that if the creditor
exercises its right under a guarantee, one co-surety is not
left to bear a disproportionate amount of the suretyship.
In the case at hand, Lavin claimed that she gained no
real benefit from Toppi’s discharge of the loan; by that
time, she had already obtained a creditor’s covenant not

to sue. However, it was held by the High Court that the
timing of Toppi’s payment would only be relevant under
common law. Equity, on the other hand, takes a more
flexible view. In McLean v Discount and Finance Ltd6
it
was said that in equity, the right to contribution can arise
even before any payment has been made or loss incurred,
so long as the payment or loss is imminent. As such,
Toppi’s right to contribution in equity arose as soon as
NAB made a claim under the guarantee.
Under cl 8(c) of the deed of release and settlement,
NAB retained its rights against the remaining guarantors
without exception. The court considered that NAB’s
willingness to issue a covenant not to sue was influenced
by the fact that it could still recover the full payment
from the remaining guarantor which was, in and of
itself, a benefit to Lavin.
The court commented that Lavin’s argument was
essentially predicated on the creditor having the ability
to select a victim of its own volition. This was said to be
the kind of treatment that equity sought to preclude.7
In
Mahoney v McManus, contribution was referred to by
Chief Justice Gibbs as a “principle of natural justice”
that “should not be defeated by too technical an approach”.8
Lavin’s argument was considered by the High Court to
be both novel and unduly technical.
While it may seem reasonable to assume that a
co-surety cannot have their rights under contribution
excluded unless through express agreement, the courts
have found that a co-surety’s equitable right to contri-
bution can be impliedly excluded. In Pacanowski v Wygoda,9
for example, Pacanowski and Wygoda entered into a
business venture with Pacanowski acting as the financier
and Wygoda providing building and construction exper-
tise. When the venture failed and Pacanowski made a
claim against Wygoda, Wygoda argued that he was not
liable for contribution; by providing the security, Pacanowski
had undertaken to bear the risk of any financial loss. The
court accepted this argument. It was deemed equitable as
although Pacanowski bore the financial loss, Wygoda
also “lost the value of his time and work”.10
The approach towards contribution in the
United Kingdom
In the United Kingdom, it appears that the equitable
right of contribution can be excluded or modified, both
expressly and impliedly, subject to concepts of fairness
and justice. A co-surety cannot, for instance, exclude
another co-surety’s right to contribution through agree-
ment with the creditor.
By way of example, in Steel v Dixon11
two of four
co-sureties entered into an agreement with the creditor
whereby they took priority in the distribution of the
benefits of a bill of sale in satisfying their liability under
the guarantee, with any residual amounts being paid to
the other co-sureties. It was held that the proceeds from
the bill of sale should be distributed equally. Similarly in
Lavin v Toppi, the High Court looked unfavourably upon
allowing the creditor to favour one co-surety over
another.
Practical tips for creditors
From the creditor’s perspective, the decision in Lavin
v Toppi makes it clear that a covenant not to sue granted
in favour of one guarantor will not of itself release the
other co-guarantors’ liability to the creditor. Such cov-
enants merely prevent the creditor from enforcing the
liability against the guarantor with whom it has entered
into settlement.
It remains to be seen, however, whether co-sureties
will react to the decision by exercising greater caution
when entering into settlement agreements with creditors.
A creditor’s covenant not to sue may no longer be
enough incentive to induce a co-surety to enter into
settlement with the creditor, as the co-surety will clearly
still be liable under the equitable doctrine of contribu-
tion. The co-surety may only be willing to settle with a
creditor when each other co-surety comes to the table to
agree on contribution matters. Creditors may therefore
find it increasingly difficult to reach settlement with
individual co-sureties.
What does a co-surety need to think about?
It is essential for co-sureties to exercise great care
when reviewing the wording of a settlement agreement
with a creditor. In particular, a release granted by the
creditor — even if it is expressed to be a “full and final
release” — will not result in a release from obligations
owed to a co-guarantor.
To avoid the result in Lavin v Toppi, a released
co-surety will need to ensure that the other co-sureties
enter into an agreement to regulate each co-surety’s
respective rights and obligations. Without such an agree-
ment, the doctrine of equitable contribution, coupled
with the factual matrix of the case, will be the determi-
native factor in deciding the obligations of two or more
co-sureties to each other.
Leigh Schulz
Senior Associate — Finance
leigh.schulz@minterellison.com
www.minterellison.com
About the author
Leigh Schulz in a specialist in corporate finance,
leveraged finance and debt restructuring. Acting for
both Australian and international financiers and bor-
rowers, Leigh has a strong track record in complex

ﬁnancing transactions in sectors such as aged care,
property, retail and ﬁnancial services.
Felicia Duan
Graduate — Finance
felicia.duan@minterellison.com
www.minterellison.com
About the author
Felicia Duan is a recent graduate of the University of
Adelaide. She joined Minter Ellison in February 2015
and is currently completing a rotation in the Finance
division.
Footnotes
1. Lavin v Toppi (2015) 316 ALR 366; 89 ALJR 302; [2015] HCA
4; BC201500378.
2. Carr v Thomas [2009] NSWCA 208; BC200906346.
3. Toppi v Lavin [2013] NSWSC 1361; BC201312931 at [18].
4. Lavin v Toppi (2014) 87 NSWLR 159; 308 ALR 598; [2014]
NSWCA 160; BC201404412 at [12].
5. Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 293; 187 ALR
612; 76 ALJR 749; BC200201732.
6. McLean v Discount and Finance Ltd (1939) 64 CLR 312 at
341; [1940] ALR 35; (1939) 13 ALJR 428; ; BC4000005.
7. Above, n 1, at [46].
8. Mahoney v McManus (1981) 180 CLR 370 at 378; 36 ALR
545; 55 ALJR 673; BC8100107.
9. Unreported, Full Federal Court of Australia, Neaves, Wilcox
and Spender JJ, 18 December 1992.
10. Above, n 10, at [28].
11. Steel v Dixon (1881) 17 Ch D 825 (Steel).

Griffin Energy Group Pty Ltd (Subject to Deed
of Company Arrangement) v ICICI Bank Ltd
Julie Talakovski and Michael Bridge HWL EBSWORTH LAWYERS
In this case1
in a judgment delivered on 27 February
2015, the Court of Appeal dismissed with costs an
appeal concerning the appropriate construction of a sale
agreement for the sale of shares in a coal mine in
Western Australia and three standby letters of credit
issued by ICICI Bank Ltd (ICICI Bank) located in
Singapore in which the appellant (Griffin) was named as
the beneficiary.
The court found that on a proper reading of the
documents the sum of $150 million did not fall “due and
payable” under the sale agreement until 3 March 2015,
meaning demand by Griffin on ICICI Bank in respect of
the letters of credit could not be made until that date.
Pursuant to the definition of “Business Day” under the
letters of credit however, the letters of credit were
deemed to expire on 2 March 2015.
The consequence of this ruling was that ICICI Bank
had no obligation to pay to Griffin $150 million under
the letters of credit. The result was disastrous for Griffin.
The harsh consequences of this decision for Griffin serve
as a timely reminder that the court will give strict effect
to the terms of letters of credit and that a beneficiary of
a letter of credit needs to take great care when drawing
down on one.
Facts
Griffin entered into a sale agreement providing for
payment in instalments, with the final payment falling
due to Griffin being $150 million. In support to the sale
agreement, three standby letters of credit were issued by
ICICI Bank identifying Griffin as the beneficiary under
each of the letters.
The dispute between the parties then arose in the
context of the circumstances set out below:
1. The date on which the final instalment of $150
million fell due and payable pursuant to the terms
of the sale agreement was either Saturday, 28
February 2015 or Sunday, 1 March 2015, neither
of which was a business day.
2. A standard provision was included in the sale
agreement at cl 1.2(g), which provided that:
… if the date on or by which any act must be done
under this document is not a Business Day, the act
must be done on or by the next Business Day.
3. Monday, 2 March 2015 was a public holiday in
Western Australia, meaning that the next business
day in Western Australia as recognised by the sale
agreement was Tuesday, 3 March 2015.
4. Presentation of the letters of credit was required to
be made at the Bank’s Singapore offices on or
before 1.30 pm on the expiry of the date of the
letters of credit. It was also to be accompanied by
a declaration stating that the amount sought was
“due and payable”.
5. Each of the letters of credit was expressed to
expire on Sunday, 1 March 2015, also a non-
business day.
6. A business day was defined in each letter of credit
as “any day (other than a Saturday or a Sunday) on
which banks are open for general business in
Australia”.
7. While Monday, 2 March 2015 was a public
holiday in Western Australia and banks in that
state would not be open for business, banks
elsewhere in Australia and in Singapore operated
as usual.
First instance
Griffin, concerned about the interplay of the terms
and conditions of the sale agreement and the letters of
credit, brought proceedings seeking declaratory relief to
the effect that:
1. presentation of the letters of credit would be
considered timely presentation if made on or
before 1:30pm Singapore time on 3 March 2015;
and
2. ICICI Bank would be required to make payment
under the letters of credit on their presentation. His
Honour Justice Hammerschlag determined that
ICICI Bank could not be required to make pay-
ments pursuant to the letters of credit as the letters
would expire before the final payment to Griffin
fell due and payable under the sale agreement. In
support of this ruling his Honour set out:
…that all types of letters of credit require the
beneficiary to comply strictly with the terms in order

to invoke the issuing bank’s commitment. Accord-
ingly, the Beneficiary in this case (Griffin) is obliged
to comply strictly with the requirements for the draft
set out in cl 2 of each of the Letters of Credit.2
Court of Appeal Decision
The primary judge’s view that letters of credit were
stand-alone instruments was not disputed. The parties
agreed that regard could not be had to any provision of
the sale agreement in determining the rights of Griffin to
call on the letters of credit or the obligations of ICICI
Bank to pay under them.
Consideration was also given by the court to the
precise wording of the definition of “Business Day”
contained in the letters of credit, commenting that the
definition did not require every bank in Australia to be
open for general business but rather that despite it being
a public holiday in Western Australia, “in general” on
that day across Australia banks could be deemed to be
open for business.
Ultimately, the Court of Appeal confirmed the pri-
mary judge’s finding. It found that on the proper
construction of the definition of “Business Day” and the
expression “due and payable” under the sale agreement
the final instalment of $150 million fell due and payable
on 3 March 2015 (being the next business day in
Western Australia). As such, Griffin had no legal right to
compel ICICI Bank to pay the final amount due under
the sale agreement before the expiry of the letters of
credit on 2 March 2015 (being the next business day
under those letters). The appeal was dismissed on this
basis.
In this case the court’s narrow reading of the terms of
the letters of credit and the sale agreement resulted in
harsh consequences for the appellant, reaffirming how
contractual documents will be interpreted and enforced
by the courts irrespective of unforeseen commercial
ramifications for the parties involved.
Julie Talakovski
Partner
HWL Ebsworth
jtalakovski@hwle.com.au
www.hwlebsworth.com.au
About the author
Julie Talakovski is a Partner in the HWL Ebsworth
Commercial Litigation and Dispute Resolution Group.
Her background is in banking, insolvency and general
commercial litigation. She acts for Australia’s largest
banks, financial institutions and insolvency practitio-
ners.
Michael Bridge
Solicitor
HWL Ebsworth
mbridge@hwle.com.au
www.hwlebsworth.com.au
About the author
Michael Bridge is a solicitor in HWL Ebsworth Com-
mercial Litigation and Dispute Resolution Group. He
routinely acts for banking and finance institutions in
relation to securities enforcement, loan recoveries and
fraudulent transactions.
Footnotes
1. Griffın Energy Group Pty Ltd (Subject to Deed of Company
Arrangement) v ICICI Bank Ltd (2015) 317 ALR 395; [2015]
NSWCA 29; BC201500972.
2. Above, n 1, at 31.

Extensions and specificity: recent clarification
from the High Court of Australia on s 588FF
orders for voidable transactions
Amanda Carruthers LEWIS HOLDWAY LAWYERS
Two High Court decisions have recently been handed
down, looking at key specific questions about orders
made under s 588FF(3) of the Corporations Act 2001
(Cth) (the Act): Grant Samuel Corporate Finance Pty
Ltd v Fletcher; JP Morgan Chase Bank, National
Association v Fletcher1
(Grant Samuel) and Fortress
Credit Corporation (Aust) II Pty Ltd v Fletcher2
(For-
tress Credit). These decisions are important from a
banking and finance perspective, as the ability of a
liquidator to apply for transactions to be rendered void
may significantly impact the prospects and quantum of
recovery available to creditors in a liquidation scenario.
In Grant Samuel the High Court closely considered
whether a court may extend the period ordered under
s 588FF(3)(a) of the Act. The issue was whether the
s 588FF(3)(a) period (the par (a) period) could be further
extended (such as by using powers to vary orders under
r 36.16 of the Uniform Civil Procedure Rules 2005
(NSW) (UCPR)) when that application was made out-
side of the time specified in s 588FF(3)(a), but within a
period already extended under s 588FF(3)(b).
In Fortress Credit, the High Court considered whether
a court may extend the para (a) period in circumstances
where the liquidators are not in a position to specify the
transaction(s) which they wish to render void (ie, shelf
orders).
Section 588FF
Section 588FF follows on from ss 588FA–FE, and
grants the court3
power to make a variety of orders
regarding voidable transactions.
For a liquidator to seek orders under s 588FF(1), they
must have made the application to the court during the
period beginning on the relation-back day and ending
three years after that day, or 12 months after the first
appointment of a liquidator in relation to the winding up
(whichever is the later)4
unless the liquidator has obtained
orders for an extension within that specified period.5
At times, the liquidator cannot or does not know
precisely what transactions are to be challenged in the
anticipated proceedings at the time they wish to seek an
extension of time. Orders of this nature are commonly
called blanket orders, or shelf orders (shelf orders) and
are obtained under s 588FF(3)(b).6
Grant Samuel
Prior to these proceedings, the liquidators of Octaviar
Ltd (receivers and managers appointed) (in liquidation)
(hereafter Octaviar) and Octaviar Administration Pty
Ltd (in liquidation) (hereafter Octaviar Administration)
had successfully obtained two sets of ex parte orders
from the Supreme Court of New South Wales, seeking to
extend the time within which they may issue proceed-
ings seeking orders under s 588FF(1).
The relation-back day for Octaviar Ltd was 4 June
2008, accordingly the timeframe set out under the par (a)
period would elapse on 4 June 2011.7
The first set of
orders seeking to extend time were applied for on 10
May 2011 and obtained on 30 May 2011, within in the
par (a) period. The orders obtained (the extension
orders) extended the period to 3 October 2011 (the
extension period).8
During the extension period, but after the expiry of
the par (a) period, the liquidators applied for and
obtained the second set of ex parte orders, in which they
applied to vary to extension orders under r 36.16(2)(b)
of the Uniform Civil Procedure Rules 2005 (NSW)
(UCPR). Those orders were granted on 19 September
2011, and the extension orders were varied to allow the
liquidators to issue proceedings seeking orders under
s 588FF up until 3 April 2012 (the variation orders).9
The appellants each made application to the Supreme
Court to set aside the variation orders. The applications
were dismissed at first instance10
and again on appeal to
the Court of Appeal11
(2:1).12
A key question raised in the appellants’ applications
was whether it is open to a court to grant an extension of
time outside of the par (a) period, but within an extended
period of time which is still on foot. Here, as the
variation orders were sought pursuant to general proce-
dural rules available under the UCPR, the relationship
between the Act and the UCPR were examined, includ-
ing in the context of the Judiciary Act 1903 (Cth).

The Judiciary Act provides in s 79(1) that the laws
(including procedural laws) of each state or territory
shall, “except as otherwise provided by the Constitution
or the laws of the Commonwealth” be binding on all
courts exercising federal jurisdiction in that state or
territory. The question which the High Court therefore
had to examine was whether s 588FF(3) “otherwise
provides”, or whether it was available to the court to
utilise the UCPR to further extend that period. If
s 588FF(3) is sufficiently inconsistent, meaning that it
leaves no room for the UCPR to operate, that would
suggest that s 588FF(3) does “otherwise provide” and
“is clearly intended to be the exclusive source of power
to extend time for the purposes of s 588FF(1)”.13
In the Court of Appeal decision, it was held by the
majority that the only restriction on the court’s ability to
provide the extension sought was that the application
must be made by the liquidator during the par (a) period.
It was considered that while the application for the
extension needed to be made within that period, the
order itself did not necessarily need to be made within
that time. Accordingly, it was found that it was accept-
able for an order to be made under the UCPR making the
variation order, when that variation occurred within the
extension period.14
The High Court noted the dissenting portion of
President Beazley’s judgment, in which Her Honour “to
the extent that it permits a new or further application to
be made for an extension of time, r 36.16(2)(b) is
inconsistent with s 588FF(3)(b) and could not therefore
be picked up by s 79 of the Judiciary Act”.15
While the majority judgment in the Court of Appeal
found the proceeding to be analogous with Gordon
v Tolcher16
the High Court unanimously distinguished
the facts of those proceedings.17
It was not contested
that Gordon v Tolcher is regarded as good law for
“establishing that, once an application for extension of
time is made in conformity with s 588FF(3)(b), the
conduct of the litigation is left for the operation of the
procedures of the court in which the application is
made”18
it was noted that the application in that case had
already been filed and so use of procedural rules to
extend time for filing under s 588FF was not raised.
A principal point of distinction is that in Gordon
v Tolcher orders had been sought not to extend time for
issuing after the period had lapsed, but rather “to
overcome the effect of their automatic operation on the
proceedings which had been instituted” so as to avoid
the proceedings from being deemed to be dismissed
automatically.19
The High Court discussed the background and pro-
gression of legislative reform surrounding s 588FF(3)
including from the Harmer Report and previous case
law, and noted that an important legislative aim has been
to afford certainty.20
Ultimately, the High Court unani-
mously found that:
… [t]he only power given to a court to vary the par (a)
period is that given by s 588FF(3)(b). That power may not
be supplemented, nor varied, by rules of procedure of the
court to which an application for extension of time is made.
The rules of courts of the States and Territories cannot
apply so as to vary the time dictated by s 588FF(3) for the
bringing of a proceeding under s 588FF(1), because s 588FF(3)
otherwise provides. It provides otherwise in the sense that
it is inconsistent with so much of those rules as would
permit variation of the time fixed by the extension order.21
Accordingly, it was held that while the extension
order was valid (and the liquidators could therefore
bring applications up to and including 3 October 2011)
the variation order was not valid, as it was made outside
of the par (a) period. Once that period had expired, no
further extension could be granted, by use of the UCPR
or otherwise.22
The High Court therefore allowed the appeal, with
costs, and directed that the Court of Appeal and Trial
orders be set aside and replaced by orders in favour of
the appellants, with costs paid by the liquidators.
The liquidators are therefore now precluded from
issuing proceedings against the appellants in relation to
claims under s 588FE of the Act.
Fortress Credit
The liquidators of OctaviarAdministration and Octaviar
had obtained orders prior to the end of the par (a) period
for Octaviar Administration extending time for that
entity to file application(s) in relation to voidable trans-
actions.23
The relation-back date for Octaviar Administration
was 3 October 2008, and the par (a) period therefore
elapsed on 3 October 2011. The liquidators obtained the
orders for extension of time on 19 September 2011,
which granted time for issuing until 3 April 2012. The
liquidators issued proceedings against the appellants on
3 April 2012.24
The appellants sought orders in the Supreme Court of
New South Wales setting aside the orders granting the
extension of time. That application was dismissed25
as
was the appellants’appeal to the Court of Appeal (5:0).26
The judgments at both trial and appeal followed BP
AustraliaLtdvBrown27
(Brown)whichheldthats588FF(3)(b)
granted a court the power to make orders for an
extension of time even if the relevant transaction(s) were
not specified. While it was acknowledged by Bathurst
CJ that the appellants’ arguments had some strength, His
Honour found that Brown was not “plainly wrong” nor
were there compelling grounds to overrule the precedent
which had been applied and relied upon for over a
decade most likely including by liquidators and their
advisors.28
The appellants then appealed to the High Court of
Australia, arguing that in order for the liquidators to

have obtained orders for the extension of time, they were
required to have specified what parties and transactions
the orders related to.
The High Court confirmed that the findings in Brown
were sound, and to be applied here. The High Court
unanimously dismissed the appeal with costs, holding
that a court was not required to identify what transac-
tion(s) were to be challenged prior to granting the orders
for extension of time. It was held that this construction
was valid under the wording of the Act and was
consistent with the intention of s 588FF(b), which is to
allow the court to mitigate the strict timelines afforded
by s 588FF(3)(a) where appropriate.29
It was held unanimously that “no independent basis
for the assertion that any extension of time which does
not identify a particular transaction or transactions must
be an unreasonable prolongation of uncertainty militat-
ing against a construction which would allow such an
order to be made”.30
Rather, s 588FF allows the court to
use their discretion, and “[q]uestions of what is a
reasonable or an unreasonable prolongation of uncer-
tainty and the scope of such uncertainty are more
appropriately considered case-by-case in the exercise of
judicial discretion than globally in judicial interpretation
of the provision”.31
This supports the pre-existing understanding that
there may be times when notwithstanding a liquidator’s
best endeavours, the liquidator may not be able to
identify all relevant transactions in time to identify them
prior to the elapsing of the par (a) period, and so a shelf
order may be appropriate.
Conclusion
These judgments provide helpful confirmation of the
High Court’s position in relation to further extensions of
time, and shelf orders, which is particularly enlightening
regarding the latter, which has not always been dealt
with consistently across the states.
Liquidators are provided with a firm and resounding
answer in the negative as to whether state or territory
based procedural law may be utilised to further extend
time for issuing proceedings outside of the par (a)
period, but the ability of liquidators to seek shelf orders
is confirmed.
The judgment in Fortress Credit however should not
be interpreted as a carte blanche for seeking shelf orders
without regard to the competing interest of potential
defendants to such claims, and their need for certainty.
Liquidators may need compelling evidence to satisfy the
court that discretion should be applied to grant shelf
orders, as it can be anticipated that the court will
continue to deal with such applications on a case by case
basis.
Amanda Carruthers
Senior Associate and Head of Insolvency
Lewis Holdway Lawyers
AmandaC@lewisholdway.com.au
www.lewisholdway.com.au
About the author
Amanda Carruthers is head of insolvency at Lewis
Holdway Lawyers. She is an experienced and skilled
litigator and technical adviser, practising in corporate
and personal insolvency law and complex commercial
litigation. Amanda holds a BA/LLB from the University
of Melbourne, and won the prestigious David Fogarty
award as the top Vic/Tas student completing the ARITA
insolvency education program in 2009.
Footnotes
1. Grant Samuel Corporate Finance Pty Ltd v Fletcher; JP
Morgan Chase Bank, National Association v Fletcher (2015)
317 ALR 301; 89 ALJR 401; [2015] HCA 8; BC201501286.
2. Fortress Credit Corporation (Aust) II Pty Ltd v Fletcher (2015)
317 ALR 421; 89 ALJR 425; [2015] HCA 10; BC201501284.
3. Defined by s 58AA of the Act.
4. Corporations Act 2001 (Cth) s 588FF(3)(a)(i)–(ii).
5. Corporations Act 2001 (Cth) s 588FF(3)(b).
6. Brown v DML Resources Pty Ltd (in liq) [No 5] (2001) 166
FLR 1; 20 ACLC 529; [2001] NSWSC 973; BC200107064 at
[31].
7. Above, n 1, at [2].
8. Above, n 1, at [3].
9. Above, n 1, at [4].
10. In the matter of Octaviar Ltd (receivers and managers appointed)
(in liq) and Octaviar Administration Pty Ltd (in liq) (2013) 272
FLR 398; 93 ACSR 316; [2013] NSWSC 62; BC201300865.
11. JPMorgan Chase Bank, National Association v Fletcher;
Grant Samuel Corporate Finance Pty Ltd v Fletcher (2014) 85
NSWLR 644; 306ALR 224; [2014] NSWCA31; BC201401011.
12. Above, n 1, at [5].
13. Above, n 1, at [8].
14. Above, n 1, at [9], see further above, n 11, at [152]–[166].
15. Above, n 11, at [89].
16. Gordon v Tolcher in his capacity as liquidator of Senafield Pty
Ltd (in liq) (2006) 231 CLR 334; 231 ALR 582; [2006] HCA
62; BC200610441.
17. Above, n 1, at [12]–[17].
18. Above, n 1, at [12].
19. Above, n 1, at [14].
20. Above, n 1, at [17]–[21].
21. Above, n 1, at [23].
22. Above, n 1, at [24].
23. Above, n 2, at [4].
24. Above, n 2, at [4].

25. In the matter of Octaviar Ltd (receivers and managers appointed)
(in liquidation) and In the matter of Octaviar Administration
Pty Ltd (in liquidation) (2012) 271 FLR 413; [2012] NSWSC
1460; BC201209466.
26. Fortress Credit Corporation (Aust) II Pty Ltd (ACN 114 624
958) v Fletcher (2014) 308 ALR 166; 285 FLR 287; [2014]
NSWCA 148; BC201403512.
27. BP Australia Ltd v Brown (2003) 58 NSWLR 322; 176 FLR
301; [2003] NSWCA 216; BC200304438.
28. Above, n 2, at [9].
29. Above, n 2, at [27]–[28].
30. Above, n 2, at [24].
31. Above, n 2, at [24].

Book reviews
Anthony Lo Surdo SC 12 WENTWORTH SELBORNE CHAMBERS
Annotated National Credit Code,
5th edition, Beatty, A and Smith A,
LexisNexis, 2014, ISBN 9780 409336160
This popular practical work, now in its fifth edition is
the natural first port of call for any issue involving the
National Credit Code (Code) and its predecessor the
Uniform Consumer Credit Code. It provides commen-
tary on, and precedent related to, the provision of credit
to consumers or strata corporations for personal, domes-
tic or household purposes, or for purchasing, refinanc-
ing, renovating or improving residential investment
property.
It considers transactions regulated by the Code,
statements of account, payouts and surrender of goods,
formal requirements for documents and other notices,
disclosure obligations, compliance and enforcement,
penalties and an overview of privacy reforms enacted on
12 March 2014.
The reason for the book’s popularity becomes evident
from the moment a credit related issue arises. It provides
the busy practitioner with a readily accessible and
readily digestible guide to the relevant statutory provi-
sions. It does so by reproducing the legislation in its
totality and by providing useful references to cases
which have considered and applied those provisions.
Where appropriate, commentary appears at the end of
the section. That commentary provides an overview of
the section and links the topic in issue to related areas.
Ong on Subrogation, Denis SK Ong,
2014, The Federation Press,
2014 ISBN 978 1 86287 979 9
This slim volume provides an outline study of the
doctrine of subrogation.
It commences with an examination of the doctrine of
the equitable principles governing the doctrine of subroga-
tion and distinguishes it from the assignment of a chose
in action. It then explores the circumstances in which
subrogation may operate: the right of subrogation to the
trustee’s right of indemnity; an insurer’s right of subroga-
tion; where the right of subrogation vests in a party
(other than a surety) who discharges a third party’s debt
to a secured creditor; a surety who discharges the
principal debtor’s debt to a secured creditor; and the
rights to subrogation of a putative lender who purports
to lend money to an ultra vires borrower who then uses
the proceeds of the putative loan to discharge its ultra
vires debts. It concludes with a consideration of those
situations where a third party payer does not have any
right to be subrogated to the right of the payee against a
debtor.
The work contains a useful summary of the essential
legal principles by reference to the primary source
material and, in doing so, provides a springboard for
further detailed research if required.
Anthony Lo Surdo SC
12 Wentworth Selborne Chambers
losurdo@12thfloor.com.au
www.12thfloor.com.au
About the author
Anthony Lo Surdo specialises in commercial, equity,
corporations, insurance, professional indemnity, prop-
erty and sports law. He has a particular interest in
banking and insolvency in respect of which he has
written extensively. He has been described by “Doyle’s
Guide to the Australian Legal Profession — 2011” as a
“Leading” counsel at the Insolvency Bar. Anthony is
accredited as an advanced mediator, arbitrator and
expert determiner.

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ISSN 1035-2155 Print Post Approved PP 255003/00764 Cite as (2015) 31(4–5) BLB
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