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Client Update: Octaviar - practical solutions

1 May 2009

On 13 March 2009 we sent out a Focus about the Queensland Supreme Court's decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37, which raised issues around the registration of charges and variations to them.

As has become apparent since then, the decision has generated a great deal of concern in the banking and finance industry, and among legal and other advisers to it. Differing, often conflicting, views have been expressed on the many issues Octaviar has raised. Inconsistencies have emerged in some of the solutions proposed. Both lenders and borrowers in the market are becoming frustrated.

Whatever one may think of the merits of the decision, it is the law until reversed on appeal or by legislative intervention, and so it is incumbent on the market to deal properly with its consequences, in a sensible and consistent way.

Because the matter was of interest to many clients we have in common, we and Mallesons Stephen Jacques decided to work together to formulate some proposed solutions, in respect of both past and future transactions. We jointly briefed John Sheahan SC to consider, refine and confirm them.

In an effort to focus the debate and begin to stabilise market practice in a post-Octaviar environment, we are now making those solutions available to the market generally, in the form of a Table. You can link to that Table here (pdf 312KB). Please read the Note at the beginning of the Table before using it. We may update the Table over time and any updated Table will be at the same address on our site.

Published 1 May 2009

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