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CLQ Vol34 No1 March-May 2020

To moral obloquy or not to moral obloquy? That is the judicial confusion surrounding statutory unconscionable conduct
by Dr Gabrielle Golding and Dr Mark Giancaspro
 
Over time, Australian State and Federal parliaments have introduced various pieces of legislation prohibiting ‘unconscionable’ conduct in a variety of commercial contexts. From when it was first judicially suggested that such conduct must involve a high degree of ‘moral obloquy’, substantial confusion has followed. In deciding whether or not conduct is statutorily unconscionable, courts have haphazardly applied, approved, ignored and condemned the expression. This article explores that judicial confusion, suggesting that ‘moral obloquy’ is wholly inappropriate for the normative inquiry invited by the relevant statutes. However, the expression cannot simply be abandoned, as the High Court of Australia most recently appeared to do in Australian Securities and Investment Commission v Kobelt [2019] HCA 18. What is actually required is further judicial clarification as to the true meaning of ‘unconscionable conduct’.
 
 
Giving security after insolvency and PPSR extensions of time
by Jason Harris
 
The commencement of the Personal Property Securities Act 2009 (Cth) (‘the PPSA’) brought sweeping changes to many areas of commercial and consumer finance law. The PPSA remodelled the system of personal property security law from an English system based on the form of a secured transaction, to a North American model based on the substance of the transaction. In corporate law, the PPSA has brought dozens of changes to the Corporations Act 2001 (Cth) (‘the Act’) because of the need to largely replace the concepts of fixed and floating charges in favour of the new ‘security interest’ concept. The introduction of the security interest concept did not wholly replace fixed and floating charges under the Act. Rather, these concepts have been added together with the ‘PPSA security interest’ to form the new ‘security interest’ definition in s51A of the Act.
 
 
The Myer ruling and its limitations
by Joseph Pimbley and Gene Phillips
 
The ruling in Myer has received significant attention and rightly so: as the first judgment in an Australian shareholder class action it provides crucial insights as to how the law may be applied in Australia, and in particular the Court’s acceptance of ‘marked-based causation’ as a basis for a damages claim.
Our article considers the mathematical component of the ruling — not so much how or why the Court decided to proceed with market-based causation, but the ingredients of that determination. Ultimately, those same ingredients will be tested time and again in subsequent actions.
We do not focus on whether the ruling was right or balanced, but rather simply investigate the Court’s reliance on certain mathematical studies presented to it, and whether that reliance was well justified.
 
  • To moral obloquy or not to moral obloquy? That is the judicial confusion surrounding statutory unconscionable conduct
    By Dr Gabrielle Golding and Dr Mark Giancaspro
    page 3
  • Giving security after insolvency and PPSR extensions of time
    By Jason Harris
    page 18
  • The Myer ruling and its limitations
    By Joseph Pimbley and Gene Phillips
    page 25
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    Main File Type pdf
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