find the latest legal job
Part Time Risk & Compliance Officer
Category: Other | Location: Brisbane QLD 4000
· Brisbane City · Flexible Part Time Hours
View details
Infrastructure Lawyer/SA
Category: Construction Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Global elite law firm · Dedicated Infrastructure team
View details
Property Lawyer
Category: Property Law | Location: All Melbourne VIC
· 12 Month Contract · Diverse Work
View details
Family Lawyer
Category: Family Law | Location: Eastern Suburbs Melbourne VIC
· Boutique Firm · Great Reputation
View details
Infrastructure Lawyers
Category: Construction Law | Location: All Perth WA
· We'd be particularly interested to hear from you if you were a lawyer who knows your way around the infrastructure and energy sectors.
View details
Law firms grapple with new Octaviar decision

Law firms grapple with new Octaviar decision

The New Lawyer can reveal that in an unlikely union, top-tier competitors Allens Arthur Robinson and Mallesons Stephen Jaques have been liaising on how to best deal with last week's decision.

THE Octaviar decision was emphatically overturned by the Queensland Court of Appeal on Friday. For the days since, banking and finance lawyers have been busy establishing how to move forward with client advice. 


The New Lawyer can reveal that in an unlikely union, top-tier competitors Allens Arthur Robinson and Mallesons Stephen Jaques have been liaising on how to best deal with last week's decision. 


In terms of how to deal with transactions, Mallesons partner Martin James said this morning: "It's certainly our position, and the position of our friends over at Allens, that we should continue to do all of that in the same way."


The Queensland Court of Appeal overturned the Octaviar ruling of McMurdo J, which cast doubt over the validity of company charges, in a 3-0 decision. But lawyers are warning that this not not yet mean that banks and borrowers can return to the way things were. 


"We're grappling with how to advise clients... We are saying that pending resolution of any appeal, at the moment we should be cautious and not really change much of what we have been doing over the last six months," said James. 


But James said there are principles that came out of the original Octaviar decision that the Court of Appeal hasn't addressed. "So whilst they have given very strong orders in favour of the appellant in the appeal, we see that there is a residue of the original principles that came out of the McMurdo J judgement that might still be there. We're adopting a practice that says little should change."


Friday's decision was "fairly emphatic", said Allens Arthur Robinson banking and finance partner Diccon Loxton in an interview with Boardroom Radio. But while people can breathe easier and sleep easier, "I can't see them entirely relaxing yet", he said. 


"The first thing is that there could be an appeal to the High Court," said Loxton. "The parties seem to have an awful lot of money to throw at this and there is awful lot at stake. So they have a while yet in which they can decide to appeal."


Loxton said of the original decision: "[It] threw the cat amongst the pigeons. The Corporations Act requires you to register variations of charges which increase the amount secured. Until the original decision everyone just thought that was limited to variations of the terms of the actual charge. But what the judge did in that case was to say the variations include anything that have the effect of increasing the amount secured." 

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Law firms grapple with new Octaviar decision
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Violence
Nov 17 2017
It's time for politicians to commit to eradicating domestic violence
The national shame of domestic violence cannot be left unaddressed, writes Christine Smyth. ...
Nov 16 2017
From lawyer in law firm to senior governance professional
Promoted by Governance Institute of Australia As a law graduate, Kate Griffiths never imagined...
marriage equality
Nov 16 2017
Legislation the next hurdle for marriage equality
Lawyers have underscored the importance of ensuring same-sex marriage legislation does not limit ant...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...