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Australian Business Law Review
Volume 38, Number 3, June 2010
A tenant in the building is worth two in the bush: Dealing with corporate tenants who are insolvent
Cameron Cheetham and David Greenberg
It has been said that “money can’t buy happiness, it can however, rent it”. This aphorism is more astute than ever with the onset of the global financial crisis as landlords are forced to deal with once profitable tenants who are having difficulties meeting obligations they have assumed under either a commercial or retail tenancy lease. This article will provide a practical set of tips and traps for landlords dealing with commercial and retail tenants who are insolvent. The first part of this article will review the general remedies available to landlords for dealing with tenants who are in default of their lease. The second part will look at external administration of companies under Ch 5 of the Corporations Act 2001 (Cth) and how these provisions effect landlords. We conclude by suggesting that a landlord, above all, needs to consider the economic environment at the time a tenant defaults, before determining how they will exercise their rights.
Some Canadian PPSA cases and their implications for Australia and New Zealand
The New Zealand PPSA closely follows the Canadian Model PPSA, whereas the new Australian PPSA is significantly different in many respects. Given these differences, Australian lawyers and courts will have to tread carefully when looking to Canadian case law and secondary materials for guidance. On the other hand, the Australian and Canadian PPSAs share many common elements and the final version of the Australian statute is much closer than some of the earlier drafts to the Canadian model. Therefore, it would be a mistake for Australian stakeholders to disregard the Canadian learning altogether. This article presents a selection of Canadian cases with the aim of demonstrating how Canadian learning and experience might be useful in the Australian context, despite the different statutory approaches.
Recovering cartel damages: The passing-on defence under the Trade Practices Act
This article analyses the availability and desirability of the passing-on defence in private damages actions brought by direct purchasers for price-fixing under Pt IV of the Trade Practices Act 1974 (Cth). The passing-on defence reflects the right of a respondent to a damages claim to argue that some or all of the cartel overcharge paid by the claimant was passed-on to subsequent purchasers in the form of higher prices. If the defence is established, the claimant’s loss is either reduced or eliminated by the amount it passed-on. Australian courts have not yet definitively considered the defence’s relevance to competition law. The growing importance of damages actions in Australia suggests that it is likely to be addressed in the near future.