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Vol32 No 2 June-August 2018

Chains of leases: aligning PPSA models with commercial expectations
by Diccon Loxton, Sheelagh McCracken and Andrew Boxall
This paper is the second in a series of three papers exploring different aspects of two models identified by the Final Report on the Review of the Personal Property Securities Act 2009 (‘Whittaker Report’) as potentially explaining how that legislation applies to transactions where the secured party is owner of the collateral and, in the case of goods, where ownership and possession of goods are divided between the secured party and the grantor. Examples include certain retention of title sale arrangements, leases and other bailments.
Goodwill and the attraction of custom — defining characteristic or convenient description?
By Tyrone Carlin
The earliest known decision on goodwill was in the early 17th century case of Broad v Jollyfe. Although the world has changed to an extraordinary degree, one constant feature of the jurisprudential landscape throughout the common law world since that time has been the elusiveness of goodwill in the face of attempts to comprehensively define it.

This article reviews two examples in which this has been so and argues that having regard to the High Court authorities with respect to goodwill up to and inclusive of the decision of the High Court in Commissioner of Taxation v Murry, it is wise to be cautious about the proposition that goodwill is the attractive force that brings in custom. Rather than being understood as a doctrine that limits the circumstances in which goodwill can be found to exist for legal purposes, the better view of the law is that attraction of custom is an important, but not total explanation for its existence. It describes rather than comprehensively defines goodwill and can therefore be drawn upon in a way that does not result in the derivation of legal conclusions substantially at odds with those likely to be reached on the same facts through a commercial or economic lens.

The liquidator and the trading trust: is the right to a trustee’s indemnity ‘property’? Some preliminary thoughts
By Lee Aitken
Few legal terms are as important, and as difficult fully to define,as ‘property’. Simply asserting a property right over a chattel can produce a jurisprudential maelstrom. The issue is even more complicated when tripartite relationships involve intangible ‘property’. In particular, a recent complex controversy has involved whether a trustee’s right of indemnity against trust assets is ‘property’ which is available to satisfy preferential creditors of the company. An important issue is the enforcement of the equitable charge (or ‘lien’) which arises over the trust assets, by virtue of the right of indemnity, by means of equitable execution through the appointment of a receiver.1

The matter has been explored at the highest level in two recent cases: Re Amerind Pty Ltd (receivers and managers appt’d (in liq) and Jones (Liquidator) v Matrix Partners Pty Ltd; in the matter of Killarnee Civil and Concrete Contractors Pty Ltd (in liq). This article focuses on the most recent decision, that of the Full Federal Court in Matrix Partners.
Termination of contracts
By Jeffrey Goldberger
This is the second part of the paper presented at Jeffrey Goldberger’s annual Contract Law Master Class for the CLA in February, 2018. The first part was published in Vol32 No1 of CLQ. The third part — ‘Assessment of damages for breach of contract’ — will follow in the next issue.
  • Chains of leases: aligning PPSA models with commercial expectations
    By Diccon Loxton, Sheelagh McCracken, Andrew Boxall
    page 3
  • Goodwill and the attractions of custom: defining characteristic on convenient description?
    By Tyrone Carlin
    page 14
  • The liquidator and the trading trust: is the right to a trustee's indemnity 'property'? Some preliminary thoughts
    By Lee Aitken
    page 22
  • Termination of contracts
    By Jeffrey Goldberger
    page 28
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