Current Law Journal Content
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Australian Business Law Review
Volume 37, Number 5, October 2009
Goodwill in the context of licensing, leasing and franchising: Some considerations
This article examines the authorities concerning the nature and treatment of goodwill in the context of licensing, leasing and franchising. It examines the licensing or leasing of business assets in general, and in relation to franchising in particular, to determine how the goodwill of a business is understood and treated, both at the start of a business and at its termination. Whether it is possible to license or lease goodwill is specifically considered in these settings. The nature of goodwill is found to prohibit the licensing or leasing of goodwill apart from the business. Possible situations involving the interests which licensors or lessors, on the one hand, and licensees or lessees, on the other hand, may have in goodwill are also proposed. The particular nature of goodwill as property which has no independent existence apart from the business forms the basis of these proposals. Consideration is also given to capital gains tax and stamp duties questions concerning licensing and leasing arrangements. Goodwill as property and an important business asset is potentially the subject of both of these tax regimes.
James Hardie: The resurrection of Re City Equitable and beyond?
On 23 April 2009, the decision Australian Securities and Investments Commission v Macdonald (No 11) (2009) 256 ALR 199 (James Hardie) was handed down by Gzell J of the Supreme Court of New South Wales. The long-awaited decision attracted much publicity consequent to its finding that, inter alia, the chief executive officer, Mr Macdonald, and other officers of James Hardie Industries Ltd (JHIL), including non-executive directors, had breached their directors' duties. Disturbingly, the judgment seemingly resurrects a number of legal principles originally sourced in, inter alia, Romer J's decision in Re City Equitable Fire Insurance Co Ltd  Ch 407 and Roger CJ's decision in AWA Ltd v Daniels (t/as Deloitte Haskins & Sells) (1992) 10 ACLC 933. This article suggests that James Hardie resurrects unacceptably lenient standards of care for directors. Such involves a retrograde step in the move in recent decades to make directors more responsible in the modern commercial world. It is ultimately advocated that it is important that subsequent judicial considerations return to the approach in Daniels v Anderson (1995) 37 NSWLR 438 to ensure directors are held to a standard of care and diligence that stakeholders can legitimately expect of directors today.
An antitrust decalogue: The ten commandments of Australasian competition law
This article summarises the basic principles of Australian and New Zealand competition law in the form of 10 commandments. After stating the fundamental guiding concepts and principles of antitrust law in quasi-Biblical language, the meaning and scope of the commandments are amplified by commentary. The application of the Decalogue to current marketplace conduct is illustrated by hypothetical examples. The essay concludes that the ongoing vitality of the law depends upon an implicit faith in its efficacy as a prudent instrument of legal intervention — one that continues to serve Australian and New Zealand society well.
Sustainability reporting: The role of financial institutions
Anne Durie and Laura Horn
Environmental damage caused by a company can lead to degradation of the environment and to financial consequences for a company. Non-financial reporting can benefit not only stakeholders, consumers and environmental interest groups but also the business itself, as companies that engage in voluntary sustainability reporting may gain commercial benefits. This article argues that financial institutions may use their corporate capital policies to ensure that there is effective reporting by companies on environmental issues. These policies are likely to be based on voluntary global initiatives that require those involved in the financial sector to accept a level of responsibility for the environmental and other effects that result from their provision of capital to corporations or specific projects.
NEW ZEALAND NEWSLETTER — Rex Ahdar
Sham transactions in New Zealand
BOOK REVIEW — Peter Lithgow
Australian Principles of Tort Law by Stewart P and Stuhmcke A