Banking & Finance

Banking & Finance


Our Banking & Finance team is able to advise at all stages of a financial transaction - from structuring through to documentation and completion and on to restructuring and enforcement.  We provide timely advice and transactional services on corporate matters for a diverse range of clients, including listed and unlisted companies, directors, banks and other financial institutions and overseas investors. 

We are “hands on” in our approach and focus on providing commercial solutions to our clients and are committed to offer solutions and practical advice to our clients through a collaborative problem solving approach. 

Our team is led by Hilary Hunt who has more than 20 years’ experience in various jurisdictions and varying economic climates.  She assists clients through a ‘can do approach’ and has been recognised by Chambers Global as a leader in her field.

We have a track record of advising on a wide range of large scale and multi-jurisdictional transactions, coupled with a deep insight of long-term working relationships with some of the industry’s key players. This means that our clients benefit from working with a team that deal with major issues that the finance industry may face.

Our Banking & Finance team’s services are complemented by the expertise of partners in related practice areas, including mergers and acquisitions, equity capital markets, taxation, workplace relations, mining and resources, intellectual property, property, competition, construction and dispute resolution.

Our core capabilities in Banking & Finance include:

  • Corporate finance

  • Capital markets

  • PPSA advice and documentation

  • Funding joint venture structures

  • Intercreditor arrangements

  • Multi-lender structures and security sharing

  • Shipping finance

  • Affordable and social housing funding structures

  • Property and construction finance

  • Derivatives

  • Mining rehabilitation fund

  • Security enforcement

  • Security restructuring


The banking & finance experience of our senior lawyers includes the following matters:

  • Acting for a major bank advising on financing of the construction of a university student accommodation programme eligible for funding under the under the government ‘NRAS’ scheme (National Rental Affordability Scheme).

  • Advising a major Chinese bank in relation to a proposed US$ 2.2 billion financing for the construction and operation of facilities for iron ore mining in the Pilbara.

  • Advising various clients in relation to the PPSA.

  • Implementing funding and credit support structures to facilitate the transfer of affordable housing developments from government to the not for profit sector.

  • Acting for a development company based in Malaysia funding construction of developments in Perth.

  • Advising a major gas distributor on security and priority issues for an inbound new entrant to shore pipeline capacity.

  • Implementing a ‘club’ financing by two major banks funding a listed property development company.

  • Restructuring of a listed company in conjunction with a capital raising involving security being granted over assets in the United States, Scotland, Singapore and Australia.

  • Acting for a major bank providing funding to a lithium mining operation involving a corporate restructure and sharing of common processing facilities.

Hilary Hunt

Lead Partner

t
+61 8 9426 6623
e
Email
View Profile

Victoria Butler

Partner

t
+61 8 9426 6694
e
Email
View Profile

Eva Lin

Partner

t
+61 8 9426 6765
e
Email
View Profile

David Murphy

Special Counsel

t
+61 8 9426 6748
e
Email
View Profile
  • 11 April 2016

    Is your SMSF limited recourse loan compliant with the ATO’s Practical Compliance Guideline?

    On 6 April 2016 the ATO released a Practical Compliance Guideline (PCG 2016/5) which helpfully sets out ‘safe harbour’ features of a limited recourse borrowing arrangement (LRBA) that are acceptable to the Commissioner. Super fund trustees with related party LRBAs need to read the Guideline and review the terms and features of their LRBAs as soon as possible and take any necessary remedial action by 30 June 2016 to ensure they are compliant and do not trigger adverse income tax consequences for the fund under the non-arm’s length income (NALI) provisions.

    Authors: Jim O’Donnell, Jemal Zagami

    LINK 41 Bytes

  • 27 January 2016

    Applying partnership assets to meet the costs of liquidators appointed to the former partners

    It is well-established that a liquidator is entitled to his or her expenses properly incurred in preserving, realising or getting in property of the company to which they are appointed.

    Authors: Victoria Butler, Eva Lin

    LINK 43 Bytes

  • 7 May 2015

    PPSA Frontline – Spotlight on PPSA section 44 - serial number registration

    Much is made about registering against the serial numbers of serial numbered property under the Personal Property Securities Act 2009 (Cth).  However, the actual effect of failing to register by serial number or registering against an incorrect serial number is often overlooked.  Serial number is defined to mean a serial number by which the regulations require, or permit, the collateral to be described in a registration. 



    Author: Hilary Hunt

    LINK 50 Bytes

  • 30 March 2015

    Spotlight on PPSA: liability concerns for receivers and liquidators

    The recent PPSA case of Citadel Financial Corporation Pty Limited v Elite Highrise Services Pty Limited (No 3) [2014] NSWSC 1926 (Citadel) brings to light a liability issue arising for receivers under the PPSA.  In that case, a secured creditor, CML Payroll Pty Limited, appointed receivers and managers (Receivers) over a company.  Two other creditors with prior registrations on the PPSR claimed priority over scaffolding in the possession of the company.   Nevertheless, the Receivers entered into an agreement with a purchaser to sell a substantial portion of that scaffolding.

    Author: Hilary Hunt

    LINK 46 Bytes

  • 1 February 2015

    Spotlight on PPSA section 62

    How well do you know the PMSI priority rule?
     
    Under the Personal Property Securities Act 2009 (Cth) (PPSA), a purchase money security interest (PMSI) has the benefit of a super-priority if the PMSI is perfected in accordance with the PPSA. This means the PMSI will have priority over the collateral to which it relates even if a prior perfected security interest attaches to the same collateral. 

    Author: Hilary Hunt

    LINK 46 Bytes

  • 7 December 2014

    PPSA Frontline - Spotlight on PPSA section 13(2)(c)

    Did you know that most leases of goods as part of a lease of residential premises are excluded from the PPSA even if the lease is for a term of more than one year?

    Author: Hilary Hunt

    LINK 46 Bytes

  • 12 November 2014

    PPSA Frontline - Spotlight on trusts and registering on the PPSR

    A vital element to registering financing statements correctly on the PPSR is inputting the correct grantor details.  Searchers of the register will search for financing statements using those details. If the searcher searches on the correct grantor details, but a registrant registered the incorrect details, the search will not disclose the registration. Section 165(b) of the PPSA states that such a defect causes the registration to be ineffective. 

    Author: Hilary Hunt

    LINK 46 Bytes

  • 20 October 2014

    PPSA Frontline - Spotlight on PPSA section 64 of the Personal Property Securities Act 2009

    Did you know that the super-priority of a purchase money security interest (PMSI) in accounts can be easily lost?


    A supplier of inventory to a retailer on title retention terms has a PMSI in the inventory giving it a super-priority over other security interests. Under the PPSA, this PMSI automatically extends to proceeds such as the account arising from the sale of inventory. This gives the supplier the same super-priority over that account. This is a favourable security position for the supplier.


    But! Under s 64, if another secured party subsequently takes a direct security interest in that account, the supplier's super-priority is jeopardised merely by the subsequent secured party giving 15 business days notice of its interest. A supply contract should be drafted to contemplate this situation. The supplier would also need to take steps to protect its security position from the operation of s 64 during the 15 business day window. If it does not, its super priority will be trumped by the subsequent security interest.

    Author: Hilary Hunt

    LINK 44 Bytes

  • 30 September 2014

    PPSA Frontline - Spotlight on section 21 of the Personal Property Securities Act 2009

    Swooping in to confirm our discussion in our last PPSA Frontline, is a new PPSA case from the Federal Court of Australia. In Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd, in the matter of Australian Gaming and Entertainment Ltd (in liq) [2014] FCA 1034 (Pozzebon), the Court addressed section 588FL of the Corporations Act 2001 (Cth) and whether a security interest was “perfected by registration, and by no other means”.

    Author: Hilary Hunt

    LINK 46 Bytes

  • 22 September 2014

    Spotlight on PPSA section 21

    Welcome to PPSA Frontline – The spotlight on the Personal Property Securities Act 2009 (Cth). Security interests should be perfected to safeguard the secured party’s rights in the personal property subject to the security interest. The PPSA provides for three different perfection steps: registration, possession and control. The step that will apply to most security interests is registration. One common misconception is that the act of registration itself has the legal effect of perfecting a security interest. In actual fact, registering is merely a necessary component of “perfecting” a security interest. More is required.

    Author: Hilary Hunt

    Download PDF 48 Bytes

  • 28 August 2014

    Spotlight on section 161

    Why are so many PPSR registrations occurring after the security agreement is signed?

     
    Many secured parties are still registering at the closing of a transaction despite the fact that the PPSA is designed to accommodate early registration.  Section 161 confirms that a registration can be made in the PPSR before or after the security agreement is made or attaches to the property.  A secured party is able to register even before the terms of the security agreement have been concluded as long as the registrant is mindful of section 151 and believes on reasonable grounds that the security interest eventually will be created.

    Author: Hilary Hunt

    LINK 10 Bytes

  • 5 August 2014

    Financial System Inquiry - External Administration Reforms

    The Hon Joe Hockey announced the final terms of reference for a new financial system inquiry on 20 December 2013.  The purpose is to examine how the financial system could be best positioned to meet Australia's evolving needs and support Australia's economic growth.

    An interim report was released on 15 July 2014.  Section 3 discusses potential changes to the current external administration regime in Australia. 

    Submissions were received that Australia should look to adopt a Chapter 11 style regime that is similar to the Chapter 11 provisions applying in the United States. A key difference between Chapter 11 and voluntary administration is that under Chapter 11 operational control remains with management, subject to Court supervision, rather than insolvency practitioners taking over the running of the business and company. 

    The Committee has come to the view that Chapter 11 has rarely enabled businesses to continue as going concerns in the long term.  It considers that adopting such a regime would be costly and could leave control in the hands of those who are often the cause of a company’s financial distress.  

    The Committee seeks further comment on retaining the current external administration regime and instead, rather than widespread structural reform, implementing the proposals suggested by the Commonwealth Government in 2012 to reduce the complexity and the cost of external administration.

    Authors:

    LINK 63 Bytes

  • 10 June 2014

    Indirect director benefits- are they now caught by 588FDA?

    The scope of section 588FDA (unreasonable director-related transactions) of the Corporations Act has potentially been widened by recent comments of the Victorian Court of Appeal. The Court of Appeal in Vasudevan v Becon questioned whether a transaction is deemed to have been made 'for the benefit of' a director even if the benefit is only an indirect benefit.

    Author: Victoria Butler

    Download PDF 40 Bytes

  • 5 June 2014

    DOCA defeats ongoing guarantee

    The Supreme Court of Western Australia has recently held that a creditor’s claim against a guarantor was extinguished some years earlier, under the guarantor’s deed of company arrangement (DOCA).

    Author: Victoria Butler

    LINK 40 Bytes

  • 30 April 2014

    Beyond the transitional period

    This article first appeared in the Law Society of NSW's The Law Society Journal on 1 May 2014.  Now that the Personal Property Securities Act is fully in force, practitioners need to consider several issues that may not have come to light during the transitional period.

    Author: Hilary Hunt

    Download PDF 6 Bytes

  • 16 April 2014

    Is a finance lease ever a PPS lease? … the first question arising from the Maiden Civil Case

    The first significant Australian judgment relating to determining priorities between competing creditors under the Personal Property Securities Act 2009 (Cth) (PPSA) sends a clear message that what matters under the PPSA is having a “perfected” security interest in personal property not “title” to the personal property.

    Author: Hilary Hunt

    LINK 62 Bytes

  • 25 March 2014

    The Government’s red tape reduction… Do the proposed changes to the PPSA go far enough?

    The Personal Property Securities Amendment (Deregulatory Measures) Bill 2014 (Cth) (Bill) was introduced to the Parliament of the Commonwealth of Australia on 19 March 2014 as part of Prime Minister Tony Abbott’s “red tape bonfire”. The substantive amendments to the Personal Property Securities Act 2009 (Cth) (PPSA) appear minor - merely involving the repeal of two sub-sections. But, as a fitting reflection of the complexity of the PPSA, these repeals have warranted an extensive 25 page Explanatory Memorandum proving that any tinkering with the PPSA is fraught with difficulty despite bringing a welcome amendment.

    To read more about the Bill please click here.

    Author: Hilary Hunt

    Download PDF 50 Bytes

  • 5 March 2014

    Banks beware - a new take on late payment fees

    On 5 February 2014, the Federal Court of Australia handed down its much anticipated decision in Paciocco v Australia and New Zealand Banking Group Limited (ANZ) [2014] FCA 35 ( Paciocco ). The decision in Paciocco - finding that certain late payment fees charged by ANZ to its customers were penalties and therefore unenforceable – is another important development in the law concerning penalties in the finance and banking industry.

    The Federal Court in Paciocco reinforced the take home ‘penalty’ principles identified by the High Court in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 ( Andrews ), and the decision will have major repercussions for banks and other financial institutions who charge their customers with standard late payment fees of $20 or more.

    Author: Victoria Butler

    Download PDF 779 Bytes

  • 22 January 2014

    Transitional period under the Personal Property Securities Act ends 31 January 2014 - implications for mining and resources operations and joint ventures

    The enactment of the Personal Property Securities Act 2009 (Cth) (PPSA) on 30 January 2012 saw the replacement of various Commonwealth, State and Territory legislation and securities registers, with a new regime governing the creation, registration and enforcement of securities that affect personal property in Australia.

    Authors: Hilary Hunt, Will Moncrieff

    Download PDF 659 Bytes

  • 3 December 2013

    Rights in construction contracts can constitute a security interest

    A recent New Zealand High Court decision McCloy v Manukau Institute of Technology [2013] NZHC 936 held that a step-in right in a construction contract is a security interest under the New Zealand equivalent of the Personal Property Securities Act 2009 (Cth) (PPSA).

    Authors: Hilary Hunt, Bianca McGoldrick

    Download PDF 506 Bytes

  • 30 July 2013

    Comply with the PPSA or Risk Losing Your Property!

    The first significant Australian judgement relating to determining priorities between competing creditors under the Personal Property Securities Act 2009 (Cth) sends a clear message that what matters is having what is known as a ‘perfected’ security interest not ‘title’.

    Author: Hilary Hunt

    Download PDF 543 Bytes

  • 25 May 2012

    Jackson McDonald 5th time Perth Law Firm of the Year

    Jackson McDonald consolidated its position as the leading West Australian law firm when named Perth Law Firm of the Year at the 2012 ALB Australasian Law Awards in Sydney on 24 May 2012.

    It is the fifth year out of six that Jackson McDonald has won this prestigious award.

    Authors:

    Download PDF 304 Bytes

  • 20 April 2012

    GST tie breaker - are you the representative of an incapacitated entity or a creditor?

    We might be forgiven for suggesting that Australia’s various tax laws are not the easiest documents to understand and interpret. This is particularly the case where there are apparent overlapping and conflicting provisions, such as the GST provisions relating to supplies by a representative of an incapacitated entity where the representative is also a creditor of that entity.

    Author: Victoria Butler

    Download PDF 378 Bytes

  • 25 January 2012

    The Personal Property Securities Act 2009 (Cth)

    The Personal Property Securities Act 2009 (Cth) (“Act”) creates a single national law governing security interests and similar transactions with respect to many different
    kinds of tangible and intangible property, other than real property. The scheme under the Act commenced on 30 January 2012.

    Author: Will Moncrieff

    Download PDF 467 Bytes

  • 10 January 2011

    Doing Business in Asia Pacific

    Jackson McDonald is a proud member of Globalaw and has assisted in the development of this guide.

    Authors:

    Download PDF 4 Bytes