A Guide to the Law of Securitisation in Australia - Clayton Utz
A Guide to the Law of Securitisation in Australia - Clayton Utz A Guide to the Law of Securitisation in Australia - Clayton Utz
15 ConclusionThis publication by Clayton Utz has attempted to highlight someof the critical legal issues, and the reasoning behind these, thataffect securitisations in Australia. The foregoing is not anexhaustive analysis, and inevitably other issues need to beconsidered depending on each instance. The issues are complex,and given the relatively brief history of securitisation in thiscountry, there is often some uncertainty as to the conclusions.As the industry matures, many of these issues will abate on thebasis of having been satisfactorily resolved, but it is certain thatthe law will continue as a fundamental component in thestructuring of any successful issue of mortgage or asset-backedsecurities.75
16 Clayton UtzOur securitisation teamAs Australia’s pre-eminent law firm in securitisation, Clayton Utzhas been involved in almost every significant securitisationtransaction in recent years. Our clients include the major issuersin the mortgage and asset backed securities markets, the leadingprogram arrangers, trustee companies and dealers as well asmany of the more prominent credit enhancers and liquidityproviders.Clayton Utz has the largest securitisation team of any law firm inAustralia. Our lawyers provide expertise, innovation and depththrough their industry knowledge, understanding andinvolvement. We understand the resources that securitisationprojects require and we provide a complete legal service acrossall areas such as capital markets, structured finance, trustee andcompany law, consumer credit, stamp duty, tax and rating issues.Our commitment to the success of the industry goes beyondstructuring and documenting transactions. Since the emergenceof securitisation in Australia, we have contributed to fosteringthe development of the industry. Clayton Utz was one of thefounding members of the Australian Securitisation Forum, anindustry body established to promote securitisation and activelylobby for the removal of any impediments to its development inAustralia. We have also been a member of the MortgageIndustry Association of Australia from its earliest days.The contact details of the partners in our securitisationteam are:Leah ChickT +61 2 9353 4215lchick@claytonutz.comAllan BlaikieT +61 2 9353 4201ablaikie@claytonutz.comMark FriezerT +61 2 9353 4227mfriezer@claytonutz.comStephen GatesT +61 2 9353 4161sgates@claytonutz.comBrian SalterT +61 2 9353 4174bsalter@claytonutz.comJohn LoxtonT +61 2 9353 4147jloxton@claytonutz.comTrevor RobinsonT +61 2 9353 4166trobinson@claytonutz.comAndrew SommerT +61 2 9353 4831asommer@claytonutz.comNinian LewisT +61 3 9286 6993nlewis@claytonutz.comDavid KlarichT +61 2 9353 4124dklarich@claytonutz.com76
- Page 25 and 26: 4 Stamp duty and securitisation244.
- Page 27 and 28: 264.8 Relief for mortgage-backed se
- Page 29 and 30: 4.10 ConclusionStamp duty is a very
- Page 31 and 32: Despite the absence of an express a
- Page 33 and 34: 32share of the profits of the compa
- Page 35 and 36: (d) before the issue:(i) the compan
- Page 37 and 38: 365.4 Debt/equity rulesDivision 974
- Page 39 and 40: Entities that make GST-free supplie
- Page 41 and 42: • “ enterprise” is defined in
- Page 43 and 44: 6 The Consumer Credit Code andsecur
- Page 45 and 46: 7 The regulation of the participati
- Page 47 and 48: inclusion within the ELE depends on
- Page 49 and 50: 8 Set-off and securitisation8.1 Int
- Page 51 and 52: 50However, this result and the prin
- Page 53 and 54: 9 Insolvency and securitisation529.
- Page 55 and 56: 54• if the trustee has not limite
- Page 57 and 58: Section 588FG provides a measure of
- Page 59 and 60: 10 Issues relating to debt securiti
- Page 61 and 62: 60indemnity existed) and had no han
- Page 63 and 64: The effect of the decision has been
- Page 65 and 66: the ASX has discretion to ask the e
- Page 67 and 68: • Public Trustee Members - for pr
- Page 69 and 70: When Austraclear receives notificat
- Page 71 and 72: have been completed in relation to
- Page 73 and 74: Some CMBS transactions allow the is
- Page 75: 14.3 GamingIn the past, another con
15 ConclusionThis publication by Clay<strong>to</strong>n <strong>Utz</strong> has attempted <strong>to</strong> highlight some<strong>of</strong> <strong>the</strong> critical legal issues, and <strong>the</strong> reason<strong>in</strong>g beh<strong>in</strong>d <strong>the</strong>se, thataffect securitisations <strong>in</strong> <strong>Australia</strong>. The forego<strong>in</strong>g is not anexhaustive analysis, and <strong>in</strong>evitably o<strong>the</strong>r issues need <strong>to</strong> beconsidered depend<strong>in</strong>g on each <strong>in</strong>stance. The issues are complex,and given <strong>the</strong> relatively brief his<strong>to</strong>ry <strong>of</strong> securitisation <strong>in</strong> thiscountry, <strong>the</strong>re is <strong>of</strong>ten some uncerta<strong>in</strong>ty as <strong>to</strong> <strong>the</strong> conclusions.As <strong>the</strong> <strong>in</strong>dustry matures, many <strong>of</strong> <strong>the</strong>se issues will abate on <strong>the</strong>basis <strong>of</strong> hav<strong>in</strong>g been satisfac<strong>to</strong>rily resolved, but it is certa<strong>in</strong> that<strong>the</strong> law will cont<strong>in</strong>ue as a fundamental component <strong>in</strong> <strong>the</strong>structur<strong>in</strong>g <strong>of</strong> any successful issue <strong>of</strong> mortgage or asset-backedsecurities.75
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