(Ebook PDF) (Ebook PDF) Corporations Legislation 2019 All Chapter

(eBook PDF) Corporations Legislation
2019
Go to download the full and correct content document:
https://ebooksecure.com/product/ebook-pdf-corporations-legislation-2019/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
(eBook PDF) Fundamental Tax Legislation 2019 By Pinto
http://ebooksecure.com/product/ebook-pdf-fundamental-tax-
legislation-2019-by-pinto/
(eBook PDF) Core Tax Legislation and Study Guide 2019
http://ebooksecure.com/product/ebook-pdf-core-tax-legislation-
and-study-guide-2019/
(eBook PDF) Pearson's Federal Taxation 2019

Corporations, Partnerships, Estates & Trusts 32nd
Edition
http://ebooksecure.com/product/ebook-pdf-pearsons-federal-
taxation-2019-corporations-partnerships-estates-trusts-32nd-
edition/
(eBook PDF) Corporations and Other Business

Associations: Selected Statutes, Rules, and Forms, 2019
http://ebooksecure.com/product/ebook-pdf-corporations-and-other-
business-associations-selected-statutes-rules-and-forms-2019/
(eBook PDF) South-Western Federal Taxation 2019:
Corporations, Partnerships, Estates and Trusts 42nd
Edition
http://ebooksecure.com/product/ebook-pdf-south-western-federal-
taxation-2019-corporations-partnerships-estates-and-trusts-42nd-
edition/
Merchant Shipping Legislation 3rd Edition
http://ebooksecure.com/product/merchant-shipping-legislation-3rd-
edition/
(eBook PDF) Concise Tax Legislation 2021
http://ebooksecure.com/product/ebook-pdf-concise-tax-
legislation-2020/
(eBook PDF) Fundamental Tax Legislation 2021
http://ebooksecure.com/product/ebook-pdf-fundamental-tax-
legislation-2021/
(eBook PDF) Translational Medicine in CNS Drug

Development, Volume 29
http://ebooksecure.com/product/ebook-pdf-translational-medicine-
in-cns-drug-development-volume-29/
Corporations Legislation 2019
User’s Guide
• Corporations Amendment (Crowd-sourced Funding for Proprietary Companies) Act 2018

– Act 106 of 2018
Corporations Regulations 2001
Amending Regulations
• Corporations Amendment (Client Money) Regulations 2017 – F2017L00455 of 2017
• Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018 –
F2018L00096 of 2018
• Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian
Financial Complaints Authority) Regulations 2018 – F2018L00515 of 2018
• Corporations Amendment (Client Money Reporting Rules Enforcement Powers)
Regulations 2018 – F2018L00743 of 2018
• Corporations Amendment (Stay on Enforcing Certain Rights) Regulations 2018 –
F2018L00835 of 2018
• Corporations Amendment (Stay on Enforcing Certain Rights) Regulations (No 2) 2018 –
F2018L00966 of 2018
• Corporations Amendment (Asia Region Funds Passport) Regulations 2018 – F2018L01144
of 2018
• Corporations Amendment (Crowd-sourced Funding) Regulations 2018 – F2018L01379 of
2018
• Treasury Laws Amendment (Professional Standards Schemes No 2) Regulations 2018 –
F2018L01393 of 2018
• Treasury Laws Amendment (Miscellaneous Amendments) Regulations 2018 – F2018L01691
of 2018
Insolvency Practice Rules (Corporations) 2016
Amending Rules
• Insolvency Practice Rules (Corporations) Amendment (Restricting Related Creditor Voting
Rights) Rules 2018 – F2018L01669 of 2018
Australian Securities and Investments Commission Act 2001
Amending Acts
• Statute Update (Smaller Government) Act 2018 – Act 4 of 2018
• Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian
Financial Complaints Authority) Act 2018 – Act 13 of 2018
• Treasury Laws Amendment (ASIC Governance) Act 2018 – Act 42 of 2018
• Corporations Amendment (Asia Region Funds Passport) Act 2018 – Act 61 of 2018
• Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 – Act 122 of 2018
• Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 – Act 132 of
2018
Australian Securities and Investments Commission Regulations 2001
• Treasury Laws Amendment (Professional Standards Schemes) Regulations 2018 –
F2018L00096 of 2018
of 2018
• Treasury Laws Amendment (Professional Standards Schemes No 2) Regulations 2018 –
F2018L01393 of 2018
viii Corporations Legislation 2019

User’s Guide
Corporations (Fees) Act 2001

Amending Acts
• Corporations (Fees) Amendment (ASIC Fees) Act 2018 – Act 55 of 2018
Corporations (Fees) Regulations 2001
• ASIC Supervisory Cost Recovery Levy Amendment (Enhancements) Regulations 2018 –
F2018L00963 of 2018
• Treasury Laws Amendment (ASIC Fees) Regulations 2018 – F2018L00965 of 2018
of 2018
HISTORY NOTES
The history notes have been entered into an abbreviated form using the number and year of the
amending Act or regulation and a descriptor (eg. “insrt”) to show the effect of the amending Act or
regulation. The abbreviations used in the historical notes are as follows:
• insrt – inserted
• am – amended
• subst – substituted
• rep – repealed
• exp – expired
• reinsrt – reinserted
• renum – renumbered
• reloc – relocated
Example: History note under subsection 766C(2A) of Corporations Act 2001:
[Subs (2A) insrt Act 17 of 2017, s 3 and Sch 1 item 26, with effect from 28 Sep 2017]
This note indicates that subsection (2A) in s 766C was inserted by Act 17 of 2017, Schedule 1 item
26. S 3 is a reference to the enacting provision.
Details of the short title of the amending Act or regulation, assent/gazettal/registration and
commencement dates are located in the Table of Amending Legislation following the Table of
Provisions. Commencement dates have also been included with each historical note (eg. 28 Sep
2017).
SIDE NOTES
Thomson Reuters authored subsection headings are inserted throughout the text of the
Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001
(Cth). These “side notes” (displayed in bold type inside square brackets to the right of a subsection
number) are designed to aid in the interpretation of the relevant subsections, where no subsection
heading is contained within the actual text of the legislation.
Example: Side note to subs 5A(5) of the Corporations Act 2001 (Cth):
(5) [Crown immune to liability] Nothing in this Act makes the Crown in any right liable to a
pecuniary penalty or to be prosecuted for an offence.
EDITOR’S NOTES
Editor’s notes have been integrated into this publication to assist practitioners with identifying
information relevant to the interpretation of a particular section or regulation, including:
(1) amendments which have received assent but which commence on a future date;
(2) gaps in numbering in a particular Act or regulation; and
(3) misdescribed amendments or drafting errors.
Example: Editor’s note under s 440H of the Corporations Act 2001 (Cth):
[Editor’s Note: There is no s 440I in this Act.]
© 2019 THOMSON REUTERS ix
User’s Guide
CROSS-REFERENCES
Cross-references have been integrated into this publication to indicate where a particular regulation
affects a section of the Corporations Act 2001 (Cth) and the Australian Securities and Investments
Commission Act 2001 (Cth).
Example: Cross-reference under s 111AS of the Corporations Act 2001 (Cth):
[Cross-references: Corps Regs:
• reg 1.2A.02 specifies when a foreign company is exempt from disclosing entity
provisions in respect of ED securities under s 111AG for the purposes of s 111AS; and
• reg 1.2A.03 exempts a foreign company from the disclosing entity provisions in respect
of an offer of shares in a company for issue or sale for the purposes of s 111AS.]
There are cross-references to related ASIC Class Orders, Forms, Regulatory Guides and Legislative
Instruments and Takeovers Panel Guidance Notes, which are identified by the agency title and
abbreviations below:
Australian Securities and Investments Commission:
• CO – Class Orders
• Form – Forms
• LI – Legislative Instruments
• RG – Regulatory Guides
Takeovers Panel:
• GN – Guidance Notes
Example:Cross-reference under s 12DL of the Australian Securities and Investments Commission
Act 2001 (Cth):
[Cross-references: ASIC: RG 201: Unsolicited credit cards and debit cards.]
This publication also includes cross-references to accounting and auditing standards and
guidance statements made by the Australian Accounting Standards Board (AASB) and the
Auditing and Assurance Standards Board (AUASB).
Example: Cross-reference under s 336 of the Corporations Act 2001 (Cth):
[Cross-references: AUASB:
• ASA 100–102, 200, 210, 220, 230, 240, 250, 260, 265, 300, 315, 320, 330, 402, 450,
500-502, 505, 510, 520, 530, 540, 550, 560, 570, 580, 600, 610, 620, 700, 701, 705,
706, 710, 720, 800;
• ASQC 1;
• ASRE 2410, 2415.]
FUTURE COMMENCEMENTS
Corporations Act 2001 (Cth)
Amendments to the Corporations Act 2001 by the Treasury Laws Amendment (Enhancing ASIC’s
Capabilities) Act 2018 (No 122) which commence on 1 July 2019 have been included in the body
of the text and are identified and found in a box with the heading:
x Corporations Legislation 2019

User’s Guide
“EFFECTIVE 1 JULY 2019”

Future Commencements
Amending legislation Number Date of gazettal/assent/ Date of commencement

registration
Insolvency Law Reform Act 2016 11 of 2016 29 Feb 2016 Sch 2 item 94 commences on
the later of: (a) commence-
ment of provs covered by table
item 2 (1 Mar 2017); and (b)
immediately after commence-
ment of item 13 of Sch 3 to
the Treasury Legislation
Amendment (Repeal Day
2015) Act 2016 (not enacted)
(commencement was proposed
for the day after date of
assent). However, the provs do
not commence at all if the
event mentioned in para (b)
does not occur.
Treasury Laws Amendment 122 of 2018 3 Oct 2018 Sch 2 items 16 and 17
(Enhancing ASIC’s Capabilities) commence 1 Jul 2019.
Act 2018
Corporations Regulations 2001 (Cth)


registration
Corporations Amendment 101 of 2013 4 Jun 2013 Sch 3: 1 Jul 2019
Regulation 2013 (No 3)
Treasury Laws Amendment F2018L00515 of 2018 24 Apr 2018 Sch 3 items 3-5 commence on
(Putting Consumers First - the later of: (a) immediately
Establishment of the Australian after commencement of the
Financial Complaints Authority) provs covered by table item 4
(25 Apr 2018); and (b) the
Regulations 2018 commencement of Sch 3 to the
Treasury Laws Amendment
(Putting Consumers First -
Establishment of the Australian
Financial Complaints
Authority) Act 2018 (to be
proclaimed, or 5 Mar 2022).
However, the provs do not
commence at all if the event
mentioned in para (b) does not
occur.
Australian Securities and Investments Commission Act 2001 (Cth)

Amendments to the Australian Securities and Investments Commission Act 2001 by the Treasury
Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018 (No 122) which commence on 1 July
2019 have been included in the body of the text and are identified and found in a box with the
heading:
© 2019 THOMSON REUTERS xi

User’s Guide

registration
Treasury Laws Amendment 13 of 2018 5 Mar 2018 Sch 3 items 3-5 commence on
(Putting Consumers First – proclamation or 5 Mar 2022.
Establishment of the Australian
Financial Complaints Authority)
Act 2018
Treasury Laws Amendment 122 of 2018 3 Oct 2018 Sch 2 items 1-13 commence 1
(Enhancing ASIC’s Capabilities) Jul 2019.
Act 2018
Corporations (Fees) Regulations 2001 (Cth)

Amendments to the Corporations (Fees) Regulations 2001 by the Treasury Laws Amendment
(ASIC Fees) Regulations 2018 which commence on 1 July 2019 have been included in the body of
the text and are identified and found in a box with the heading:

registration
Treasury Laws Amendment (ASIC F2018L00965 of 2018 29 Jun 2018 Sch 2 items 1 and 2
Fees) Regulations 2018 commence 1 Jul 2019.
PROPOSED AMENDMENTS
Corporations Act 2001
• Corporations Amendment (Modernisation of Members Registration) Bill 2017 – 2nd
reading speech Senate 15 Jun 2017. Report of Senate Economics Legislation Committee
tabled 11 Sep 2017. Sch 1 commences on a date to be proclaimed or 6 months after date
of assent.
• Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018
– passed House of Reps 24 Oct 2018; 2nd reading speech Senate 12 Nov 2018. Sch 1
items 1-31 and 33 commence day after date of assent.
• Fair Work Amendment (Protecting Australian Workers) Bill 2016 – 2nd reading speech
Senate 15 Mar 2016; restored to Notice Paper 31 Aug 2016. Sch 2 items 1-4 commence
day after date of assent.
• Federal Circuit and Family Court of Australia (Consequential Amendments and
Transitional Provisions) Bill 2018 – passed House of Reps 27 Nov 2018; 2nd reading
speech Senate 3 Dec 2018. Referred to Senate Legal and Constitutional Affairs Legislation
Committee for enquiry and report by 15 Apr 2019. Sch 2 items 253-270 commence at the
same time as the Federal Circuit and Family Court of Australia Act 2018 commences
(commencement for that Act is to be proclaimed or 6 months after date of assent).
However, the provs do not commence at all if that Act does not commence.
• Treasury Laws Amendment (2018 Measures No 2) Bill 2018 – passed House of Reps 25
Jun 2018; 2nd reading speech Senate 26 Jun 2018. Report of Senate Economics
Legislation Committee tabled 15 Mar 2018. Sch 1 items 1 and 2 commence day after date
of assent.
• Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention
Powers) Bill 2018 – debate House of Reps 24 Oct 2018. Report of Senate Economics
Legislation Committee published 9 Nov 2018; Corrigendum published 19 Nov 2018. Sch
1 items 1-9 commence 2 years after date of assent. Sch 2 items 1-12 commence day after
date of assent.
xii Corporations Legislation 2019
User’s Guide
• Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 – passed

Senate 6 Dec 2018. Report of Senate Economics Legislation Committee tabled 22 Mar
2018. Sch 1 items 1-7 and 9-13 commence on the first 1 January, 1 April, 1 July or 1
October to occur after the end of the period of 3 months beginning on the day this Act
receives assent; Sch 1 items 33-35 commence on the later of: (a) immediately after the
commencement of the provs covered by table item 2 (table item 2 is proposed to
commence on the first 1 January, 1 April, 1 July or 1 October to occur after the end of the
period of 3 months beginning on the day this Act receives assent); and (b) immediately
after the commencement of Sch 1 to the Treasury Laws Amendment (Strengthening
Corporate and Financial Sector Penalties) Act 2018 (Sch 1 is proposed to commence on
the day after that Act receives assent). However, the provs do not commence at all if the
event mentioned in para (b) does not occur.
• Treasury Laws Amendment (Improving Accountability and Member Outcomes in
Superannuation Measures No 1) Bill 2017 – debate Senate 4 Dec 2017. Report of Senate
Economics Legislation Committee published 23 Oct 2017. Sch 6 items 1-20 commence
day after date of assent.
• Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill
2018 passed House of Reps 29 Nov 2018; 2nd reading speech Senate 3 Dec 2018. Sch 1
items 1-146 commence day after date of assent.
Sch 5 items 1 and 2 commence on the later of: (a) immediately after the commencement
of the provs covered by table item 2 (this item is proposed to commence on the day after
date of assent); and (b) immediately after the commencement of the Corporations
Amendment (Strengthening Protections for Employee Entitlements) Act 2018 (proposed
commencement is the day after that Act receives assent). However, the provs do not
commence at all if the event mentioned in para (b) does not occur.
date of assent); and (b) immediately after the commencement of Sch 1 to the Treasury
Laws Amendment (Design and Distribution Obligations and Product Intervention Powers)
Act 2018 (proposed commencement for the Schedule is 2 years after that Act receives
assent). However, the provs do not commence at all if the event mentioned in para (b)
does not occur.
date of assent); and (b) immediately after the commencement of Sch 2 to the Treasury
Laws Amendment (Design and Distribution Obligations and Product Intervention Powers)
Act 2018 (proposed commencement for the Schedule is the day after that Act receives
assent). However, the provs do not commence at all if the event mentioned in para (b)
does not occur.
Sch 5 item 35 commences on the later of: (a) immediately after the commencement of the
provs covered by table item 2 (this item is proposed to commence on the day after date of
assent); and immediately after the commencement of Sch 6 to the Treasury Laws
Amendment (Improving Accountability and Member Outcomes in Superannuation
Measures No 1) Act 2018 (proposed commencement of the Schedule is the day after that
Act receives assent). However, the provs do not commence at all if the event mentioned in
para (b) does not occur.
Australian Securities and Investments Commission Act 2001
• Federal Circuit and Family Court of Australia (Consequential Amendments and
Transitional Provisions) Bill 2018 – passed House of Reps 27 Nov 2018; 2nd reading
speech Senate 3 Dec 2018. Referred to Senate Legal and Constitutional Affairs Legislation
Committee for enquiry and report by 15 Apr 2019. Sch 2 items 109-117 commence at the
same time as the Federal Circuit and Family Court of Australia Act 2018 commences
(commencement for that Act is to be proclaimed or 6 months after date of assent).
However, the provs do not commence at all if that Act does not commence.
• Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention
Powers) Bill 2018 – debate House of Reps 24 Oct 2018. Report of Senate Economics
© 2019 THOMSON REUTERS xiii
User’s Guide
Legislation Committee published 9 Nov 2018; Corrigendum published 19 Nov 2018. Sch
2 items 16-18 commence day after date of assent.
• Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill
2018 – passed House of Reps 29 Nov 2018; 2nd reading speech Senate 3 Dec 2018. Sch
2 items 1-51 commence day after date of assent.
ACKNOWLEDGMENTS
Extracts from the following reports have been reprinted with the kind permission of:
CCH Australia Limited
• Australian Company Law Cases (ACLC)
The Council of Law Reporting for New South Wales
• NSW Law Reports (NSWLR)
Incorporated Council of Law Reporting for England & Wales
• Appeal Cases (AC)
• Chancery (Ch)
• Chancery Division (ChD)
• Queen’s Bench (QB)
Incorporated Council of Law Reporting for the State of Queensland
• Queensland Reports (Qd R)
LexisNexis Australia
• Australian Corporations and Securities Reports (ACSR)
LexisNexis UK
• All England Law Reports (All ER)
Little William Bourke Pty Limited
• Victorian Reports (VR)
The Takeovers Panel
• Australian Takeovers Panel (ATP)
Thomson Reuters (Professional) Australia Limited
• Australian Criminal Reports (A CrimR)
• Commonwealth Law Reports (CLR)
• Federal Court Reports (FCR)
• Federal Law Reports (FLR)
Thomson Reuters (Professional) Australia Limited and the authors are thankful to the publishers,
agents and authors who have been considerate in allowing the reproduction of their work in this
book. Every effort has been made to contact copyright holders and/or their agents. While every care
has been taken to establish and acknowledge copyright, Thomson Reuters (Professional) Australia
Limited tenders its apology for any accidental infringement. The publisher would be pleased to
come to a suitable agreement with the rightful owners in each case.
xiv Corporations Legislation 2019

CONTRIBUTORS
Edmund Finnane
Edmund Finnane is a graduate of the Australian National University (Bachelor of Arts and
Bachelor of Laws) and the University of New South Wales (Master of Laws – Corporate and
Commercial). He has practised as a barrister in New South Wales since 1997, prior to which he was
a solicitor for two years.
Edmund has a wide-ranging practice in commercial law and equity. He is particularly interested in
corporate insolvency, mortgage law, equity, deceased estates, professional liability and contractual
and other commercial disputes.
Edmund has recently been appointed the General Editor of the Company and Securities Law
Journal, published by Thomson Reuters.
Edmund has published articles in the Commercial Law Quarterly and Law Society Journal. He is a
director of the Commercial Law Association.
Edmund has delivered seminars to members of the legal profession on areas including commercial
damages, equity, insolvency law and de facto relationships law.
He is co-author of two books:
• Finnane, Newton and Wood, Equity Practice and Precedents (2nd edition), Thomson
Reuters, due for publication in February 2019.
• Azize, El Khoury and Finnane, Pleading Precedents (6th edition), Thomson Reuters,
2009.
Jason Harris
Jason Harris is Professor of Corporate Law in the Sydney Law School at The University of Sydney
where he teaches and researches in corporate law, corporate insolvency law and contract law. Jason
has been teaching corporate law for 19 years and has taught previously at UTS, UNSW and the
ANU and in 2017 served as President of the Corporate Law Teachers Association.
Jason is an active researcher in the corporate and commercial law fields having published 13 books,
including Keay’s Insolvency (with Michael Murray, published by Thomson Reuters), the Annotated
Personal Property Securities Act (with Nicholas Mirzai, published by Wolters Kluwer), Australian
Corporate Law (with Anil Hargovan and Michael Adams, published by LexisNexis) and Company
Law: Theories, Principles and Applications (published by LexisNexis). Jason has published over
90 articles in scholarly and professional journals. His research has been cited in more than 25
Supreme Court and Federal Court decisions, as well as in parliamentary inquiries and by the
Productivity Commission and CAMAC. Jason is the company and securities law section editor for
the Australian Law Journal, the co-editor of the insolvency law section of the Journal of Banking
and Finance Law and Practice and sits on the editorial board of the Australian Journal of
Corporate Law and the Insolvency Law Bulletin.
Jason is a fellow of the Governance Institute of Australia, a member of the Corporations and
Insolvency Law Committees of the Business Law Section of the Law Council of Australia, a
member of the Law Committee of the Australian Institute of Company Directors and an academic
member of ARITA and INSOL International. Jason is the chair of the academic committee of the
Banking and Financial Services Law Association.
From 2004-2009, Jason wrote the case law annotations to the legislation contained in this book.
© 2019 THOMSON REUTERS xv

ANNUAL REVIEW OF CORPORATIONS LAW
by
Jason Harris
Professor of Corporate Law
Sydney Law School (from 2019)
INTRODUCTION
Welcome to the Corporations Legislation 2019. The past 12 months have been a significant year in the
development of Australian corporate law and in the economy more generally. Before discussing recent
legislative changes and case law developments, I’d like to acknowledge the sad passing during 2018 of Bob
Baxt who wrote this annual review from the first edition of the Corporations Annual in 2004. Bob was a
significant figure in Australian corporate and commercial law over many decades. He was a renowned author
of multiple scholarly and practical legal works, including writing the annual review for the Corporations
Annual from the book’s inception in 2004 until 2017. It was an honour to work with Bob as I compiled the
case law annotations for this work from the 2004 edition until 2009 and my work benefited greatly from his
guidance and support. He was a colleague and mentor and will be missed, by readers of this work and so many
others. I don’t step into the role of writing the annual review for this work with the intention of taking over
from Bob, because they are impossibly large shoes to fill and Bob had his own unique and authoritative style
that few can emulate. My goal is to provide a concise summary of the important developments in Australian
corporate law over the past 12 months and to make some critical comments on where the law might be
heading.
Corporate law has dominated the media headlines in the past 12 months, like few years in recent memory. The
events disclosed in the Royal Commission into Misconduct in the Banking, Superannuation and Financial
Services Industry (“the Royal Commission”) has generated public attention on the governance and operation
of some of Australia’s largest companies. In particular, the Royal Commission has focused attention on how
companies in the broad financial services industry make profits, sometimes to the detriment of customers. The
shareholder primacy norm, which argues that directors should be primarily focused on making profit for
shareholders rather than balancing stakeholder interests, has come under intense scrutiny, with NAB Chair Dr
Ken Henry questioning during his testimony to the Royal Commission whether the whole system is broken
and needs replacing. In the interim report (at p 55), the Commissioner explained:
The duty to pursue profit is one that has a significant temporal dimension. The duty is to pursue the
long-term advantage of the enterprise. Pursuit of long-term advantage (as distinct from short-term gain)
entails preserving and enhancing the reputation of the enterprise as engaging in the activities it pursues
efficiently, honestly and fairly. And, lest there be any doubt, it also entails obeying the law. But to preserve
and enhance a reputation for engaging in the enterprise’s activities efficiently, honestly and fairly, the
enterprise must do more than not break the law. It must seek to do “the right thing”.
The interim report went on to suggest (also at p 55) that entities covered by the Royal Commission
investigations appeared to pursue profit above all else, and treated compliance with the law (and at times
penalties from non-compliance with the law) merely as a cost of doing business.
The duties and accountability of company directors and officers, and the liability and responsibility of those
working within companies (large and small) are likely to focus legislative review in the near future as the
public outrage at conduct revealed during the Royal Commission will demand government and parliamentary
action. We are already seeing this in recent legislative proposals to increase ASIC powers and to increase
penalties. There is also talk of extending the Banking Executive Accountability Regime (BEAR) regulations
beyond their current banking focus to cover more companies.
It is to be hoped that any legislative response to the Royal Commission will involve a considered and
consultative approach. Changing the Corporations Act 2001 (Cth) is often a blunt tool and wholesale change
of corporate law is unlikely and unnecessary. As the Commissioner said in his interim report issued in
September 2018, conduct that fell below community standards did not occur because of the absence of laws
that prohibited conduct such as charging for services that were not provided, giving inappropriate financial
advice and misleading customers and regulators. One area that will certainly see change will be the
enforcement approach of ASIC and APRA, which have been criticised by both the Royal Commission and by
the media. Negotiated outcomes are likely to be less common and there will no doubt be an increase in court
action, although the initial suggestion of the Royal Commissioner that regulators should start with court
enforcement and then ask whether it is in the public interest not to take action would overturn decades of
responsible regulation theory and turn the enforcement pyramid (with court action at the apex) on its head.
There is clearly tremendous value in negotiation in avoiding costly, complex and time-consuming litigation,
provided that appropriate enforcement outcomes are still obtained. A consultative corporate regulator can
encourage compliance in the regulated population and produce regulatory guidance that meets the needs of the
community and the economy. It seems certain that a rebalancing of the enforcement approaches of ASIC and
APRA will be coming in 2019.
© 2019 THOMSON REUTERS xvii
Annual Review of Corporations Law
LEGISLATION
Despite periods of turmoil in Federal Parliament in 2018, the past year has produced some significant
legislative amendments to our corporate laws.
Major legislation passed
Treasury Laws Amendment (2017 Enterprise Incentives No 2) Act 2017
Although this was passed in 2017, introducing the safe harbour for company directors against insolvent
trading from September 2017 as noted in the previous annual review, the Act also introduced protection for
companies in administration, receivership or schemes of arrangement against ipso facto clauses, which
commenced on 1 July 2018. The ipso facto protections are subject to more than 60 exceptions, most
importantly for rights in contracts that pre-date 1 July 2018. Given the breadth and range of exceptions it must
seriously be questioned whether this reform will make restructuring companies in distress easier or more
difficult.
Corporations Amendment (Crowd-sourced Funding for Proprietary Companies) Act 2018
This is a significant change to the law allowing proprietary companies to access crowd-sourced equity funding
(CSF) without changing to a public company. Crowd-sourced equity funding provisions were made available
for public companies in 2017 through the introduction of a new Pt 6D.3A into the Corporations Act 2001. The
amendments focused on simplified disclosure documents and licensing of crowd-sourced fundraising
intermediaries together with protections for investors through fundraising caps. The 2017 amendments also
allowed for a transitional period, during which time proprietary companies could convert to a public company
without complying with certain compliance obligations that public companies usually have for a period of five
years. The introduction of CSF for proprietary companies will remove those transitional concessions (with
limited grandfathering rules for existing companies that converted from proprietary to public to take advantage
of the concessions).
The 2018 amendments extend Pt 6D.3A to proprietary companies, with some important additions. Proprietary
companies that wish to issue CSF offers will need to have at least two directors (other than Pty Ltd companies
may have only one director) and will be subject to Chapter 2E related party transaction laws. The
50-shareholder limit will remain but employees and shareholders connected with a crowd-sourced funding
offer will not count for the limit following changes to s 113. Furthermore, the takeover laws in Chapter 6 will
not apply to proprietary companies with shareholders who acquire shares through a CSF offer. Proprietary
companies that make CSF offers will need to maintain a register of CSF shares and include details of members
holding CSF shares. ASIC has released RG 261 (to guide issuers) and RG 262 (to guide intermediaries).
Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints
Authority) Act 2018
This Act establishes a new external dispute resolution body to replace the prior Financial Ombudsman Service,
the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal.
Modern Slavery Act 2018
This Act requires certain Australian entities or entities carrying on a business in Australia, as well as statutory
entities, to provide a “modern slavery statement” to the Minister. This will only be required for entities with
consolidated revenue of $100 million or more, although voluntary reporting is also permitted under the
scheme. Although there is no specific penalty for failing to comply, the Minister can name and shame entities
that do not comply. The Act will commence on 1 January 2019.
Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Act 2018
This Act makes minor amendments to the Corporations Act 2001 to assist with implementing new and
improved powers for APRA to deal with financially distressed ADIs and insurers. The insolvency of such
entities is dealt with under special provisions in other legislation such as the Banking Act 1959, Insurance Act
1973, Life Insurance Act 1995 and the Financial Sector (Business Transfer and Group Restructure) Act 1999.
The powers include a broad directions power given to APRA that may involve capital restructuring and
changes to equity holdings.
Treasury Laws Amendment (2017 Measures No 5) Act 2018
This Act introduces new requirements in the Corporations Act 2001 for administrators of designated
significant financial benchmarks to obtain a licence from ASIC, as well as giving ASIC new powers in relation
to designated financial benchmarks and creating new criminal offences for manipulation of financial
benchmarks.
Corporations Amendment (Asia Region Funds Passport) Act 2018
This Act implements the Government’s commitment to the establishment of the Asia Region Funds Passport
initiative which is the subject of a memorandum of cooperation between the governments of Japan, Korea,
New Zealand, Thailand and Australia. The passport allows eligible funds to be offered across multiple
participating jurisdictions under a common set of rules.
xviii Corporations Legislation 2019

Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018

This Act adds to ASIC’s mandate to consider how the performance of its functions and exercise of powers will
affect competition in the financial system. The Act also implements recommendations from the ASIC
capability review to allow ASIC (from 1 July 2019) to employ staff otherwise than under the Public Service
Act 1999.
Pending legislation
Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018
This Bill would amend the Corporations Act 2001, Australian Securities and Investments Commission Act
2001 as well as other related statutes to strengthen the existing penalty framework. This would make
significant changes to the penalty framework in the Corporations Act 2001, including increasing penalties (and
standardising the method for calculating penalties); expanding the civil penalty regime and infringement notice
regime; introducing new court divestment powers; new attempt and accessorial liability provisions and
requiring the court to prefer compensating victims rather than imposing penalties. While these changes stem
from the recommendations of the ASIC Enforcement Review Taskforce report (December 2017), the changes
will not achieve their goal unless they are accompanied by a greater willingness of ASIC to take enforcement
action.
Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018
This Bill proposes significant reforms to protect and enhance the recovery of employee entitlements. the Bill
will rewrite large portions of Pt 5.8A of the Corporations Act 2001, which deals with liability for
arrangements to avoid paying employee entitlements. The provisions were introduced following the Patricks
waterfront dispute in the late 1990s, which saw employees engaged by entities with little or no assets losing
their entitlements. Part 5.8A currently includes both civil and criminal sanctions, but is widely regarded as
being ineffective and has generated no successful prosecutions. The Bill will expand the scope of both the
criminal and civil penalty provisions by making it easier to establish contraventions and against a wider
category of persons. The Bill will also include a new civil compensation provision and provide broader
standing rules to allow enforcement. Apart from amendments to Pt 5.8A, the Bill will introduce a new
contribution order that will allow the court to order compensation to cover certain unpaid entitlements within
corporate groups, but the definition of a “contribution order group” is very broad and could have wide
reaching consequences. The bill also includes new disqualification powers for the court and ASIC against
persons who have been involved with multiple instances of companies failing to pay for employee
entitlements within the last seven years.
Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Bill 2018
This Bill would amend the Corporations Act 2001 by imposing further duties and obligations on issuers and
distributors of financial products that require a PDS and securities that are regulated by Chapter 6D. The
primary obligation is to require a “target market determination” to be formulated and regularly reviewed by
the issuer. The issuer must not issue securities or financial products that are no longer consistent with the target
market determination. ASIC will be given new stop order powers in relation to these new provisions. The Bill
will also give ASIC the power to make orders in relation to financial and credit products (the intervention
power).
Treasury Laws Amendment (2018 Measures No 2) Bill 2018
This Bill would amend the Corporations Act 2001 to give regulation making powers to allow for exemptions
from AFS licensing obligations in relation to activities involving the FinTech Regulatory Sandbox maintained
by ASIC.
Treasury Laws Amendment (Whistleblowers Protections) Bill 2017
This Bill consolidates and broadens the existing protections and remedies for corporate and financial sector
whistleblowers. This includes expanding the range of laws that can be subject to protected disclosures by
whistleblowers, expanding who can receive protected disclosure, allowing former employees to act as
whistleblowers and providing greater confidentiality and stronger immunities and protections against
victimisation of whistleblowers.
SIGNIFICANT CASES
DIRECTORS’ AND OFFICERS’ DUTIES
Gunasegaram v Blue Visions Management Pty Ltd [2018] NSWCA 179
This case concerned a company providing services as part of the Perth Children’s Hospital project. Two of the
senior employees (though not directors) of the company resigned from the company and were serving out their
notice periods. One of the employees (Chidiac) was the third most senior employee of the company but did
not have general management power. While informing a government senior official involved in managing the
hospital project (Hamilton) that he was leaving the company, he was asked if he had a desire to continue
working on the project after he left the company to which Chidiac replied yes and Hamilton responded that he
would “look into it”. Hamilton then proposed several options to the company (Blue Visions) and it was agreed
(between the Department and Blue Visions) that the section of the project that Chidiac was working on would
be subject to a novation of contract. Shortly after this was agreed, the employees formed a new company
© 2019 THOMSON REUTERS xix
(Aspire) to perform the continued work and the novation of contract was executed and performed. Chidiac had
no post-employment restraints in his contract of employment. When the contract came up for renewal, Aspire
was successful in its tender. Blue Visions then commenced proceedings for breach of statutory and fiduciary
duties against the former employees and Aspire. Interestingly the case was run only on the basis of a breach of
the conflict rule and not of the profit rule.
The Court of Appeal (by majority) held that the conversation with Hamilton presented no concrete opportunity
that could be exploited and hence no “real or sensible possibility of conflict” arising with Blue Visions.
Furthermore, any potential work on the project at the time of the conversation with Hamilton depended on the
approval of Blue Visions in granting the novation, so there was no conflict caused by the conversation.
Meagher JA placed importance on the fact that Chidiac had no role or responsibility for surrendering some or
all of the contract and this distinguished the case from other decisions such as Cook v Deeks [1916] AC 555
and Industrial Development Consultants Ltd v Cooley [1972] 1 WLR 443 where the employees were involved
in management decisions about the projects, whereas Mr Chidiac was merely responsible for performing and
supervising the work on the Hospital project not in the management of the contract for the company. Gleeson
JA (also in the majority) drew a distinction between misuse of company property for a private benefit and
diverting a business opportunity, the latter of which his Honour held was properly addressed by the conflict
and profit rules (at [187]). In summary, a general statement by Hamilton to “look into” seeing if Chidiac could
continue working after his employment expired did not amount to a real or sensible possibility of conflict, nor
a breach of s 182 of the Corporations Act 2001.
ASIC v Geary [2018] VSCA 103
This case finally brings to a conclusion the AWB litigation that has played out over the past 11 years since
ASIC first took action about former directors and officers of AWB. While ASIC has had limited success in this
litigation, with penalties and disqualification periods against several defendants, it lost its case against Geary,
the former group general manager of trading for AWB with the Court of Appeal dismissing ASIC’s appeal
against the finding of the trial judge which dismissed ASIC’s case against Geary. The case demonstrates the
difficulties that plaintiffs face when trying to establish actual knowledge of wrongdoing by senior company
officers, particularly by reference to the rule in Jones v Dunkel. As the Court said at [253]:
After all, Geary may have been the recipient of literally thousands of emails over the years, spread out over
significant periods of time. Any attempt to reconstruct, by inference, what he may or may not have read at
any given time would have to be fraught.
United Petroleum Pty Ltd v Herbert Smith Freehills [2018] VSC 347
This case concerned the consequences of a failed IPO by United. The IPO was terminated after problems with
the relevant documents were discovered and the company’s independent directors decided to discontinue the
IPO. The bulk of the case involves the question of whether the defendant firm was entitled to its full fees
(which the Court upheld), but the case also involves some interesting issues relating to directors’ duties against
the former non-executive chair of the company. Although these claims were dismissed, the Court undertook a
detailed examination of directors’ duties. The court considered whether the interests of the company were to
be equated with the interests of the shareholders as a whole (applying the decision in Greenhalgh v Arderne
Cinemas Ltd [1951] Ch 286) and stated that this proposition was open to doubt due to recent cases. In more
recent times, the view has been expressed that the general body of shareholders does not always, and for all
purposes, embody “the company as a whole” (at [749], relying on Australasian Annuities Pty Ltd (in liq) v
Rowley Super Fund Pty Ltd (2015) 104 ACSR 312; [2015] VSCA 9 at [57] per Warren CJ (Neave JA
agreeing); at [221] per Garde AJA (Neave JA agreeing)).
The issue of whether the interests of the company consist solely of shareholder interests and directors should
focus their attention on benefitting shareholders alone (the so-called “shareholder primacy norm”) has been
hotly debated throughout 2018 due to revelations in the Banking and Financial Services Royal Commission.
Indeed, in the final round of evidence the chair of the NAB went so far as to state that in his view shareholder
primacy had failed as an ideal to guide boards. Decisions such as United Petroleum, Australasian Annuities
and The Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1; 225 FLR 1; [2008] WASC
239 make it clear that the interests of the company is not limited only to shareholders and can incorporate a
longer-term view that aims for sustained success of the company and not merely short-term shareholder
returns.
Matter Technology Ltd v Mrakas [2018] NSWSC 507
This is one of the first cases to consider director and officer liability relating to cryptocurrency issues. Mrakas
was the CEO and director of Matter Technology, a company involved in monitoring and commoditising power
generated from solar panels. The company was heavily involved in innovation and undertook several projects
to develop new business concepts. Mrakas had entered an employment contract that provided ownership of
intellectual property developed by him to his employer, Matter Technology. During his employment, Mrakas
discussed selling the company’s business to an energy company with one of the other directors (Barnes).
Mrakas and other employees then developed a project to issue cryptocoins through an initial coin offering
(ICO – a form of fundraising where electronic tokens are issued in exchange for widely used cryptocurrency
such as Bitcoin or Ethereum, which can then be converted into fiat currency through crypto exchanges).
xx Corporations Legislation 2019
Mrakas claimed that he told Barnes that any intellectual property developed in the project would be his
beneficially because of the plan to sell the company’s business (the Court rejected this evidence) and then
issued a draft discussion paper setting out the project details and noting his ownership of the intellectual
property. A subsequent board meeting considered the ICO proposal and it was noted that the company had
insufficient funds to proceed, and a comment was made that if the project was to proceed Mrakas would need
to fund it, although Barnes noted that new potential investors may be found. The Court held that this was not
ratification for Mrakas to proceed with the project in his own beneficial interest. Subsequent correspondence
between directors made it clear that they wished to further consider the matter after Christmas, but Mrakas
proceeded to work on the project over the Christmas break by using company resources and staff to further
develop the ICO project materials. Shortly afterwards, Mrakas launched a pre-sale of the ICO which included
setting up a website with documentation, establishing a foundation to run the project, setting up a bank
account and collecting money from interested investors (some of which was paid directly to him). The bank
put a hold on the funds deposited into the account and eventually the ICO failed and did not proceed further,
with funds being returned to investors. A board meeting shortly thereafter terminated Mrakas’ employment.
The Court held that Mrakas had breached his employment contract and had contravened ss 182 and 183 of the
Corporations Act 2001 by proceeding with the unauthorised project, concealing the development of the
project, publicly claiming ownership of the project and associated IP and reducing any role or benefit that the
company may have in the ICO to less than what was originally discussed at the previous board meeting. The
decision is a timely reminder of the importance of well-drafted contracts and policies for companies to manage
the development of intellectual property by their employees. One interesting argument, rejected by the Court,
was that because the ICO would operate on a blockchain Mrakas and his foundation were not the vendors of
the cryptocurrency but rather “the computer was”. This was rejected by the Court because the structure of the
project and the payments from investors were directed to Mrakas’ benefit.
MEMBERS’ REMEDIES
Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48
This case involved a coal exploration company that was majority-owned and controlled by a state-sponsored
Chinese company. Disputes between the minority shareholders and the controlling shareholder involved the
minority being excluded from certain members’ meetings and they made an application for relief against
oppression either to be bought out or to wind up the company. The Court at first instance determined that a
winding up was appropriate and the Court of Appeal agreed, finding that the wording of s 467(4) required a
winding up order unless the applicant was acting unreasonably in seeking a winding up instead of some other
remedy. The Court held that there was some doubt about whether a buyout order would be complied with by
the majority shareholders and so a winding up order was just and equitable in the circumstances. The decision
gives useful guidance as to how the court may determine the appropriate remedy in cases involving minority
oppression and conduct that may fall within s 461(1)(k).
Re Innovateq Pty Ltd [2018] VSC 124
This is a case where the principal controllers suffered an irreconcilable breakdown in their business
relationship and thereafter began working in competing businesses, leaving the company’s operations dormant
for several years while the principals were involved in litigation. One of the principals sought leave to bring a
statutory derivative action (SDA) against the other principal and associated entities which were competing
against his own competing business. The Court held that as the company had ceased trading and the principals
could no longer work together it was not in the best interests of the company that leave to bring an SDA be
granted. Furthermore, the fact that the company was not trading and that any successful court action arising
out of the SDA would benefit the applicant’s separate business demonstrated a lack of good faith by the
applicant.
INSOLVENCY CASES
Mighty River International Ltd v Hughes [2018] HCA 38
The voluntary administration process has a tight time frame, with the standard period of administration usually
being no more than 35 business days, although court extensions of time or adjournments of the final creditors’
meeting may extend this period. The end of administration usually results in either liquidation or a deed of
company arrangement (DOCA), although time limitations for administration may make it difficult to conduct
a full investigation and negotiate a commercially feasible DOCA within the standard time frame (at least
without one or more court extensions). Administrators have developed a practice of proposing a “holding
DOCA” for approval by creditors, which is a DOCA that gives the administrators more time to negotiate a
commercial outcome for the company and its creditors. Usually the holding DOCA will not provide for a
distribution of property to creditors, because the point of it is allow the administrator to seek a better deal, so
the DOCA simply gives the administrator time to do that (which may take a year or longer) and will usually
build in monitoring mechanisms so that the conduct of the holding DOCA by the administrator remains
accountable to creditors. Holding DOCAs are widely used in administrations in Australia, including the recent
successful restructuring of large steel maker Arrium. This case upheld the validity of holding DOCAs under Pt
5.3A of the Corporations Act 2001.
This case concerned a challenge by a minority shareholder and creditor (Mighty River) of a mining company
(Mesa) that had been taken over by Mineral Resources (which was also a joint venture partner in Mesa’s major
© 2019 THOMSON REUTERS xxi
assets). Mighty River unsuccessfully argued that a DOCA that failed to make any property available to
creditors (that is, as part of a holding DOCA) did not comply with the content requirements for DOCAs under
s 444A and that merely seeking to extend time through a holding DOCA was inconsistent with the purposes of
Pt 5.3A and improperly sought to sidestep the court’s jurisdiction in granting extensions of time. The Court
rejected all of these arguments, finding (by majority) that holding DOCAs are consistent with the purpose of
Pt 5.3A because they seek to save the company or provide a better return. Furthermore, the Court held that s
444A did not require property to be available for distribution to creditors. This is a good commercial result for
corporate restructuring efforts in Australia. A contrary finding would have made voluntary administrations
more time-consuming, complex and expensive due to the need to seek one or more court extensions of time.
Banerjee v Commissioner of Police [2018] NSWCA 283
This case involved a company losing its licence to carry on a business providing security services in New
South Wales due to State law provisions requiring termination of a security provider’s licence when it enters
administration. The termination of the licence effectively ended the company’s business and the administrators
sought court orders that the state law provision was inconsistent with Pt 5.3A of the Corporations Act 2001
because it prevented the company’s affairs being carried on with a view to executing a deed of company
arrangement. This argument was rejected by the Court of Appeal, which held in a unanimous decision that
there was no inconsistency between the State law and voluntary administration and nothing in Pt 5.3A
supported an immunity against such a State law. It may be noted that the recent protection against ipso facto
clauses that commenced on 1 July 2018 would not have assisted the company because statutory licences are
expressly exempted from their operation. The decision is another example of where State licensing laws can
make trying to save a struggling company’s business by entering voluntary administration difficult if not
impossible. There is a long-running issue in NSW with restrictions for companies that operate registered clubs
needing statutory permission to appoint an administrator (see for example, Correa v Whittingham [2013]
NSWCA 263).
White v Robertson [2018] FCAFC 63
This case dealt with the significant issue of who should pay for the costs associated with dealing with property
held by a company when it enters external administration. A trend has developed over recent years where
insolvency practitioners have sought court orders to allow for costs to be recovered by levying a fee against
persons with claims over property that has needed to be dealt with by the insolvency practitioner during the
period of the company’s external administration, so that the fee must be paid before the goods are transferred
to the claimants (see for example, Re Arcabi Pty Ltd; Ex part Theobald (2014) 288 FLR 236; [2014] WASC
310; Re Renovation Boys Pty Ltd [2014] NSWSC 340). In this case, administrators were appointed over an
auction house, which held (as consignee under bailment) numerous artworks and other items for sale at
auction. The appointment of administrators meant that no further auctions would take place and the company
therefore had a legal obligation to return the goods to the consignors. The auction house had poor internal
inventory systems (which consisted of a mix of electronic and manual systems, that operated across locations
in multiple states and was incomplete and sometimes inaccurate) and the administrators estimated that there
were between 8,000 and 12,000 items to be returned to consignors. The administrators determined to conduct
a comprehensive stocktake of the consigned items, which generated extensive costs and professional fees. The
administrators sent letters to consignors claiming a levy of more than $350 per item and claimed a lien over
the assets pending payment. The Full Court recognised that an equitable lien can be claimed by administrators
for necessary work done in relation to property in which the company does not claim an interest, but rejected
the administrators’ claim for the lien in this matter. This was because a full stocktake was not necessary to
enable many of the goods to be returned and because the company had breached its duties as bailee by failing
to properly track items consigned to it and the cost of this should not fall on consignors. The Court noted that
the administrators could have sought directions as to how to proceed before undertaking such a large and
expensive stocktake.
Longley v Chief Executive, Department of Environment and Heritage Protection [2018] QCA 32
This decision was a significant win for insolvency practitioners appointed over companies with environmental
remediation liabilities. This is an important issue for State and Territory governments around Australia as falls
in commodity prices push mining and resources companies into external administration. The first instance
decision had held that liquidators could be personally liable under State environmental clean-up laws based on
an inconsistency between those laws and the provisions which allow liquidators to disclaim onerous property,
which it was said engaged the operation of s 5G of the Corporations Act 2001. The Queensland Court of
Appeal overturned this decision and held that there was no inconsistency between the laws and so s 5G was
not engaged, and a liquidators’ disclaimer need not impose personal liability for environmental clean-up costs
on the liquidator themselves. This is a welcome decision for creditors in liquidation, although a concern for
State and Territory governments left with the clean-up costs when companies become insolvent. It is not too
far-fetched to believe that this may be a matter for COAG in the future with the goal of law reform to give
better protection for local communities affected by environmental harm. The High Court refused special leave
in September 2018.
xxii Corporations Legislation 2019

Chief Commissioner of State Revenue (NSW) v Boss Constructions (NSW) Pty Ltd [2018] NSWCA 270
The 21-day time limit to seek to have a statutory demand set aside has been interpreted in a very literal way
by appellate courts going back at least to the High Court’s decision in David Grant & Co Pty Ltd v Westpac
Banking Corporation (1995) 184 CLR 265. Nonetheless, companies seeking to avoid the consequences of
failing to challenge a demand within 21 days of service continue to try novel arguments. In this recent case,
the NSW Court of Appeal overturned a first instance decision that held that a challenge could be made to a
demand despite the 21-day period having expired due to conduct by the Commissioner of State Revenue that
justified an estoppel. The Court of Appeal reaffirmed that the 21-day period must be interpreted strictly and
estoppel cannot be used to overturn the strict requirements of the statute.
Hosking v Extend N Build Pty Ltd [2018] NSWCA 149
This case considered whether payments made by a builder to secondary subcontractors following the inability
of the head subcontractor to pay them were unfair preferences under s 588FA. Both the Court at first instance
and the Court of Appeal held that they were not, because there was no obligation to pay owed between the
company that subsequently went into liquidation (the head subcontractor) and the builder to pay the debts
owed to the secondary subcontractors. Although the company in liquidation had requested payment, there was
no legal obligation to make the payment because the subcontract had been terminated by the builder, and the
builder had also been requested to make the payment by the a union. Bathurst CJ stated that seeking to
establish that the payments were part of a transaction of the company in liquidation by reference to a “chain of
causation” was not helpful in cases under s 588FA (at [94]).
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) [2018] WASCA 163
The collapse of the Forge Group in 2014 has generated extensive litigation giving rise to a range of insolvency
and secured transactions issues in multiple courts across Australia. In this case, a dispute arose as to the effect
of a security interest being granted over the assets of Forge on the rights of Hamersley to assert set-off in
insolvency under s 553C of the Corporations Act 2001. The Court at first instance held that granting a security
interest under the PPSA resulted in a loss of mutuality due to the fixed nature of a PPSA security interest. This
caused considerable consternation among insolvency, banking and construction lawyers given the general
assumption that statutory set-off will be available (assuming the terms of s 553C apply). The Court of Appeal
allowed the appeal and held that statutory set-off could apply because mutuality was not extinguished by Forge
granting a security interest in its assets as Forge was still able to use its property for its own benefit and the
assets were circulating as the bank with the security interest did not control them. The Court also held that
contractual and equitable set-off may continue where s 553C statutory set-off does not apply due to the lack of
mutuality. Given the large sums of money involved in this dispute, it is likely that special leave to appeal to
the High Court will be sought, which if granted would create an opportunity for the High Court to comment
on the nature and scope of PPSA security interests for the first time.
Stone v Melrose Cranes & Rigging Pty Ltd (No 2) [2018] FCA 530
This case adds to the line of authorities that recognise the ability of creditors facing unfair preference claims
brought by liquidators to assert a right of set off under s 553C, even though in this case statutory set-off was
not available due to the creditor having notice of the company’s insolvency.
Re SurfStitch Group Ltd [2018] NSWSC 164
This case considers the position of subordinated creditors under ss 563A and 600H. The subordinated creditors
were shareholders who formed part of class actions against the company, and were prohibited from voting at
creditor meetings without court permission or receiving payment in a deed of company without all
unsubordinated creditors being paid in full. The administrators believed there would be likely to be a surplus
in the administration and so sought court orders to allow the subordinated creditors to vote at the creditors’
meeting but also to allow the chair of the meeting to admit the claims for a nominal amount for voting
purposes to try to save costs. The Court granted these orders except for the request to allow a ruling on the
proofs of debt for a nominal amount as the Court was not satisfied that the complexity and difficulty of
adjudicating on proofs by the subordinated creditors justified ruling for a nominal amount.
INSOLVENCY AND TRUSTS
The widespread use of trusts administered by corporate trustees to conduct commercial activities has produced
a number of complex problems when the trustee enters insolvency. There has been a long debate regarding the
divergent appellate authorities in Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99 and Re Enhill Pty Ltd
[1983] 1 VR 561, and courts around Australia continue to grapple with the proper meaning of the High Court’s
ruling in Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360. A key issue in this debate is how trust
property is to be distributed among creditors when the corporate trustee has a right of indemnity (usually a
right of exoneration) for outstanding debts properly incurred in administering the trust. On one view, trust
property can only be used to pay trust creditors (the Suco Gold view), while on another view (the Enhill view)
a trustee’s right of indemnity is property of the company and can be used beneficially by the trustee company
to pay all of its creditors (assuming the right of indemnity remains intact). In recent years, the
Commonwealth’s funding of employee entitlements in insolvency through the Fair Entitlements Guarantee
Act 2012 (which then allows for subrogation of the Commonwealth into the shoes of the employees who have
their entitlements covered where they have lost employment due to liquidation) has produced an active and
well-funded creditor who stands in a priority position and is prepared to enforce its priority through litigation
© 2019 THOMSON REUTERS xxiii
to test the operation of the law. This has resulted in several decisions that have considered whether distribution
of trust property for corporate trustees that enter external administration should be according to the priority
ranking in s 556 of the Corporations Act 2001. The High Court has granted special leave in the Amerind
litigation and it is to be hoped that the Court will provide further clarity to the area in its ruling.
Commonwealth of Australia v Byrnes [2018] VSCA 41 (the Amerind appeal)
This case involved a situation where a corporate trustee had only acted as trustee and had not been removed by
the terms of the trust deed or by the beneficiaries at the time that the company entered receivership. The
receivers sold the secured assets and then sought court directions as to how to distribute the funds. The Court
of Appeal (a unanimous five-judge bench) held that the weight of authority (including High Court authorities)
determined that the right of indemnity was property of the company and, as such, the s 556 distribution
priority ranking must be applied.
Jones v Matrix Partners Pty Ltd [2018] FCAFC 40
Although this case involved a three-judge bench, the decision was not an appeal, but rather a referral for
determination of an issue. The case concerned a corporate trustee that was removed as trustee (but not
replaced) when the company entered external administration. The Court (by majority) applied (the Amerind
appeal) in finding that the right of indemnity was property of the company and that the s 556 priority ranking
should apply. However, the Court also held that the “property of the company” was not simply the trust
property itself but rather the right of indemnity over the property. The corporate trustee entering liquidation
did not change the character of trust property into company property, and so the use of the property for the
purposes of satisfying the right of indemnity needed to be consistent with trust law principles. This meant that
it should be used to satisfy trust creditors. The Court also held that in applying the s 556 priority ranking, a
liquidator would need to make a careful assessment of whether the debts incurred could be paid out of trust
property (for example, general liquidation expenses that bear no relationship to the administration of the trust).
There is ample authority that if the corporate trustee only acted in a trustee capacity for a single trust then the
costs and expenses of the liquidator of the company should be given priority either under the statute or in
equity.
While the decision in the Amerind appeal provides clarity and greater certainty for insolvency practitioners,
the Jones v Matrix Partners case raises several unresolved questions, while still applying the s 556 priority
ranking and protecting the priority of liquidator fees and expenses. The lingering uncertainty in this area will
hopefully be addressed by the High Court. If it is not (and it should be noted that Jones v Matrix Partners has
not been appealed) then a legislative solution will need to be found.
Pleash v Tucker [2018] FCAFC 144
One of the difficulties thrown up by the use of trusts is how to characterise the nature of the interests held by
different participants in the trust arrangement. Beneficiaries may have fixed or variable entitlements to
proceeds from the operation of the trust, or may simply have a mere expectancy as a discretionary beneficiary.
Characterising the legal rights of persons who can remove and replace the trustee also pose difficulties. The
Richstar decision (ASIC v Carey (No 6) (2006) 153 FCR 509; [2006] FCA 814) is one notable example where
the court held that a person who had effective control over the trustee (where the person was a beneficiary,
original holder of a power of appointment and husband of the current holder of the power of appointment and
the director and secretary of the trustee company administering the trust) could be said to hold a form of
property for the purposes of s 9 of the Corporations Act 2001. In this case, liquidators sought production of
documents relating to a trust in which an examinee was both beneficiary and director of a corporate trustee
that administered the trust. The goal of the liquidators was to determine whether the examinee had resources
that justified further litigation. The liquidators relied on the Richstar case to justify their request for documents
relating to the trust, but the Full Federal Court noted that in numerous subsequent cases the Richstar case had
not been applied or had been rejected. The Full Court held that a “beneficiary’s legal or de facto control of the
trustee of a discretionary trust [does not] alter the character of the interest of the beneficiary such that it will
constitute property” at [45] (relying on Fordyce v Ryan [2017] 2 Qd R 240; [2016] QSC 307). The Court held
at [53] that:
The ability of a prospective defendant to satisfy a judgment debt in the event that litigation is pursued by
a liquidator is within the scope of such examinable affairs but we do not consider there is a proper basis to
extend the scope of “examinable affairs” to a consideration of what assets outside of those that comprise a
prospective defendant’s property might voluntarily be directed to payment of such debt.
FINANCIAL ASSISTANCE
Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180
This decision significantly expands the potential breadth in the meaning of “financial assistance”. The case
involved a prolonged dispute between the shareholders of a closely held company that operated a mortgage
aggregation business. The principals involved in the business were involved in various court proceedings
against each other and their associated companies. The company’s constitution included a pre-emptive right to
restrict transfer of shares to an outsider. Slea (which held approximately 30% of the shares) sought to sell its
shares to an outsider and terminated the sale agreement in settlement of a dispute with the other shareholders.
Slea then sought again to sell its shares to the same outsider (the sale agreement was discovered in other
proceedings involving the company) and the company sought to enforce the constitutional right of pre-emption
xxiv Corporations Legislation 2019

by seeking orders compelling Slea to offer its shares to the other shareholders. Slea sought a court order to stay
the company’s action on the basis that the agreement to sell the shares was identified during discovery and it
would breach an implied undertaking not to use the discovered document for collateral purposes (which was
upheld by the trial decision) and on the basis that court orders enforcing the pre-emption right would breach s
260A of the Corporations Act 2001. The Court of Appeal overturned the trial decision and held that an
injunction under s 1324 was appropriate as orders in the pre-emption proceedings could be characterised as
financial assistance by the company for the benefit of its non-Slea shareholders. The financial assistance
consisted of detriment to the company involving the costs of the proceedings to enforce the pre-emption rights.
The reasoning for this curious result is based on s 1324(1B) which requires the court to presume a breach of
s 260A if one is alleged in proceedings seeking an injunction under s 1324(1) unless the company proves
otherwise, which in this case it did not do. However, it must be difficult for the company to prove this as
enforcing its contractual rights to enforce its own constitution will always consume financial resources.
Although an odd result, with all due respect, the decision is useful as a summary of the law of financial
assistance. It must be questioned whether the Court of Appeal’s rejection of the need for a transaction to found
financial assistance will prove a productive addition to the jurisprudence on s 260A. The decision also raises
questions of what a company can do to enforce constitutional rights of pre-emption in such circumstances, if
seeking court orders to enforce may constitute financial assistance. Shareholder approval under s 260B is
impractical in cases of disputes such as in Slea. Perhaps we will see more boards using their discretion to
refuse to register share transfers where s 1072G is not replaced. Of course one may also point to the
pragmatism of the result in terms of the court not wanting to allow the majority shareholders to use the
company’s resources to force a transfer of shares for their own personal benefit.
REGULATORY MATTERS
ROYAL COMMISSION
The Royal Commission was mentioned in the introduction to this year in review. At the time of writing
(December 2018) the final report had not yet been released. The Interim Report revealed widespread
compliance failures, misconduct and dishonesty. It also revealed a failure of regulatory action to deter or stop
such conduct. The final report will no doubt contain a number of areas for potential law reform, many of
which may come within the Corporations Act 2001, particular Chapter 7, and the ASIC Act. The Interim
Report cautions against kneejerk legislative responses noting that increased regulatory change brings further
complexity without necessarily better compliance outcomes. The conduct revealed in the Royal Commission
did not occur because of a lack of legislative statements prohibiting the conduct.
ASIC has taken enforcement action against various financial firms for matters and practices highlighted by the
Royal Commission, such as fees for no service, failing to comply with responsible lending obligations and
giving unsuitable financial advice and there will no doubt be further enforcement activity over the next year.
ASIC
ASIC’s new Chairman, James Shipton, began his term in February 2018. The Commission also appointed
three new commissioners during 2018 – Daniel Crennan; Danielle Press and Sean Hughes – to a have total of
five commissioners, although Peter Kell is finishing at the end of 2018.
Karen Chester was recently announced as the replacement for Peter Kell as Deputy Chair from January 2019.
Ms Chester is currently the Deputy Chair of the Productivity Commission and also chaired the ASIC
Capability Review Task Force in 2015.
Recent major enforcement activity by ASIC include commencing civil proceedings against several directors of
Tennis Australia relating to the granting of rights to broadcast the Australian Open without a tender process
(18-346MR). ASIC concluded long-running civil cases against CBA and Westpac relating to setting the BBSW
(with cases against ANZ and NAB concluding in 2017). ASIC also commenced proceedings against the
former CEO and CFO of Rio Tinto relating to disclosure by the company of asset impairments (18-061MR;
18-119MR).
The ASIC Capability Review Report was handed down in January 2018 and ASIC has responded to the report
on its website and has undertaken a number of recommended changes. ASIC’s Corporate Plan 2018–2022 was
released in August 2018, where the new Chairman wrote about the important role that ASIC has in “driving
behaviours that will build and restore trust”. The Plan focuses on four core strategies: “being agile”;
“accelerating enforcement outcomes”; “implementing new supervisory approaches” and “promoting regtech”.
These strategies may be viewed as a partial response to the criticism made of the regulator in the Royal
Commission interim report, which questioned ASIC’s heavy use of administrative enforcement tools,
negotiated enforcement outcomes (including enforceable undertakings) and the overall time taken to complete
enforcement action. In October 2018, ASIC released the report of a detailed study undertaken by academics at
University of NSW Law School, “The general deterrent effect of Enforceable Undertakings (EUs) on peer
financial services and credit providers”. ASIC is to be credited with seeking out empirical evidence of the
effectiveness of its enforcement strategies and encouraged to undertake further research of this kind in the
future.
© 2019 THOMSON REUTERS xxv
Another random document with
no related content on Scribd:
Well, I scarce remember at what point of my peregrination, at
what quite vague, senseless street-corner it was that I felt my inquiry
—up to that moment rather embarrassing—turn to clearness and the
whole picture place itself in a light in which contemplation might for
the time find a warrant and a clue. I at any rate almost like to live
over the few minutes in question—for the sake of their relief and
their felicity. So retracing them, I see that the spring had been
pressed for them by the positive force of one’s first dismay; a sort of
intellectual bankruptcy, this latter, that one felt one really couldn’t
afford. There were no references—that had been the trouble; but the
reaction came with the sense that the large, sad poorness was in itself
a reference, and one by which a hundred grand historic connections
were on the spot, and quite thrillingly, re-established. What was I
tasting of, at that time of day, and with intensity, but the far
consequences of things, made absolutely majestic by their weight
and duration? I was tasting, mystically, of the very essence of the old
Southern idea—the hugest fallacy, as it hovered there to one’s
backward, one’s ranging vision, for which hundreds of thousands of
men had ever laid down their lives. I was tasting of the very
bitterness of the immense, grotesque, defeated project—the project,
extravagant, fantastic, and to-day pathetic in its folly, of a vast Slave
State (as the old term ran) artfully, savingly isolated in the world that
was to contain it and trade with it. This was what everything round
me meant—that that absurdity had once flourished there; and
nothing, immediately, could have been more interesting than the
lesson that such may remain, for long years, the tell-tale face of
things where such absurdities have flourished. Thus, by a turn of my
hand, or of my head, interest was evoked; so that from this moment I
had never to let go of it. It was to serve again, it was to serve
elsewhere, and in much the same manner; all aspects straightway
were altered by it, and the pious pilgrim came round again into his
own. He had wanted, his scheme had fairly required, this particular
part of the country to be beautiful; he had really needed it to be, he
couldn’t afford, in due deference to the intellectual economy imposed
on him, its not being. When things were grandly sad, accordingly—
sad on the great scale and with a certain nobleness of ruin—an
element of beauty seemed always secured, even if one could scarce
say why: which truth, clearly, would operate fortunately for the
compromised South.
It came back again—it was always, after this fashion, coming back,
as if to make me extravagantly repeat myself—to the quantity to be
“read into” the American view, in general, before it gives out an
interest. The observer, like a fond investor, must spend on it, boldly,
ingeniously, to make it pay; and it may often thus remind one of the
wonderful soil of California, which is nothing when left to itself and
the fine weather, but becomes everything conceivable under the
rainfall. What would many an American prospect be for him, the
visitor bent on appreciation frequently wonders, without his
preliminary discharge upon it of some brisk shower of general ideas?
The arid sand has, in a remarkable degree, the fine property of
absorbing these latter and then giving them back to the air in
proportionate signs of life. There be blooming gardens, on the other
hand, I take it, where the foliage of Time is positively too dense for
the general idea to penetrate or to perch—as if too many ideas had
already been concerned and involved and there were nothing to do
but to accept the complete demonstration. It was not to this order, at
any rate, that my decipherable South was to belong; but Richmond at
least began to repay my outlay, from point to point, as soon as the
outlay had been made. The place was weak—“adorably” weak: that
was the word into which the whole impression flowered, that was the
idea, evidently, that all the rest of the way as well, would be most
brought home. That was the form, in short, that the interest would
take; the charm—immense, almost august—being in the long,
unbroken connections of the case. Here, obviously, would be the
prime source of the beauty; since if to be sad was to be the reverse of
blatant, what was the sadness, taken all round, but the incurable
after-taste of the original vanity and fatuity, with the memories and
penalties of which the very air seemed still charged? I had recently
been studying, a little, the record, reading, with other things, the
volume of his admirable History in which Mr. James Ford Rhoades
recounts the long preliminaries of the War and shows us, all lucidly
and humanely, the Southern mind of the mid-century in the very
convulsions of its perversity—the conception that, almost comic in
itself, was yet so tragically to fail to work, that of a world rearranged,
a State solidly and comfortably seated and tucked in, in the interest
of slave-produced Cotton.
The solidity and the comfort were to involve not only the wide
extension, but the complete intellectual, moral and economic
reconsecration of slavery, an enlarged and glorified, quite beatified,
application of its principle. The light of experience, round about, and
every finger-post of history, of political and spiritual science with
which the scene of civilization seemed to bristle, had, when
questioned, but one warning to give, and appeared to give it with an
effect of huge derision: whereby was laid on the Southern genius the
necessity of getting rid of these discords and substituting for the
ironic face of the world an entirely new harmony, or in other words a
different scheme of criticism. Since nothing in the Slave-scheme
could be said to conform—conform, that is, to the reality of things—it
was the plan of Christendom and the wisdom of the ages that would
have to be altered. History, the history of everything, would be
rewritten ad usum Delphini—the Dauphin being in this case the
budding Southern mind. This meant a general and a permanent
quarantine; meant the eternal bowdlerization of books and journals;
meant in fine all literature and all art on an expurgatory index. It
meant, still further, an active and ardent propaganda; the
reorganization of the school, the college, the university, in the
interest of the new criticism. The testimony to that thesis offered by
the documents of the time, by State legislation, local eloquence,
political speeches, the “tone of the press,” strikes us to-day as beyond
measure queer and quaint and benighted—innocent above all;
stamped with the inalienable Southern sign, the inimitable rococo
note. We talk of the provincial, but the provinciality projected by the
Confederate dream, and in which it proposed to steep the whole
helpless social mass, looks to our present eyes as artlessly perverse,
as untouched by any intellectual tradition of beauty or wit, as some
exhibited array of the odd utensils or divinities of lone and primitive
islanders. It came over one that they were there, in the air they had
breathed, precisely, lone—even the very best of the old Southerners;
and, looking at them over the threshold of approach that poor
Richmond seemed to form, the real key to one’s sense of their native
scene was in that very idea of their solitude and their isolation. Thus
they affected one as such passive, such pathetic victims of fate, as so
played upon and betrayed, so beaten and bruised, by the old burden
of their condition, that I found myself conscious, on their behalf, of a
sort of ingenuity of tenderness.
Their condition was to have waked up from far back to this
thumping legacy of the intimate presence of the negro, and one saw
them not much less imprisoned in it and overdarkened by it to-day
than they had been in the time of their so fallacious presumption.
The haunting consciousness thus produced is the prison of the
Southern spirit; and how was one to say, as a pilgrim from afar, that
with an equal exposure to the embarrassing fact one would have
been more at one’s ease? I had found my own threatened, I
remember—my ease of contemplation of the subject, which was all
there could be question of—during some ten minutes spent, a few
days before, in consideration of an African type or two encountered
in Washington. I was waiting, in a cab, at the railway-station, for the
delivery of my luggage after my arrival, while a group of
tatterdemalion darkies lounged and sunned themselves within range.
To take in with any attention two or three of these figures had surely
been to feel one’s self introduced at a bound to the formidable
question, which rose suddenly like some beast that had sprung from
the jungle. These were its far outposts; they represented the
Southern black as we knew him not, and had not within the memory
of man known him, at the North; and to see him there, ragged and
rudimentary, yet all portentous and “in possession of his rights as a
man,” was to be not a little discomposed, was to be in fact very much
admonished. One understood at a glance how he must loom, how he
must count, in a community in which, in spite of the ground it might
cover, there were comparatively so few other things. The admonition
accordingly remained, and no further appeal was required, I felt, to
disabuse a tactful mind of the urgency of preaching, southward, a
sweet reasonableness about him. Nothing was less contestable, of
course, than that such a sweet reasonableness might play, in the
whole situation, a beautiful part; but nothing, also, was on reflection
more obvious than that the counsel of perfection, in such a case,
would never prove oil upon the waters. The lips of the non-resident
were, at all events, not the lips to utter this wisdom; the non-resident
might well feel themselves indeed, after a little, appointed to silence,
and, with any delicacy, see their duty quite elsewhere.
It came to one, soon enough, by all the voices of the air, that the
negro had always been, and could absolutely not fail to be, intensely
“on the nerves” of the South, and that as, in the other time, the
observer from without had always, as a tribute to this truth, to tread
the scene on tiptoe, so even yet, in presence of the immitigable fact, a
like discretion is imposed on him. He might depart from the
discretion of old, if he were so moved, intrusively, fanatically, even
heroically, and he would depart from it to-day, one quite recognized,
with the same effect of importunity, but not with the same effect of
gallantry. The moral of all of which fairly became, to my sense, a soft
inward dirge over the eternal “false position” of the afflicted South—
condemned as she was to institutions, condemned to a state of
temper, of exasperation and depression, a horrid heritage she had
never consciously invited, that bound up her life with a hundred
mistakes and make-believes, suppressions and prevarications, things
that really all named themselves in the noted provincialism. None of
them would have lived in the air of the greater world—which was the
world that the North, with whatever abatements, had comparatively
been, and had conquered by being; so that if the actual visitor was
conscious now, as I say, of the appeal to his tenderness, it was by this
sight of a society still shut up in a world smaller than what one might
suppose its true desire, to say nothing of its true desert. I can
doubtless not sufficiently tell why, but there was something in my
whole sense of the South that projected at moments a vivid and
painful image—that of a figure somehow blighted or stricken,
discomfortably, impossibly seated in an invalid-chair, and yet fixing
one with strange eyes that were half a defiance and half a
deprecation of one’s noticing, and much more of one’s referring to,
any abnormal sign. The deprecation, in the Southern eyes, is much
greater to-day, I think, than the old lurid challenge; but my haunting
similitude was an image of the keeping-up of appearances, and above
all of the maintenance of a tone, the historic “high” tone, in an
excruciating posture. There was food for sympathy—and the restless
analyst must repeat that when he had but tasted of it he could but
make of it his full meal. Which brings him back, by a long way round,
to the grim street-corner at Richmond where he last left himself.
III
He could look down from it, I remember, over roofs and chimneys,
through some sordid gap, at an abased prospect that quite failed to
beckon—that of the James River embanked in snow and attended by
waterside industries that, in the brown haze of the weather, were
dingy and vague. There had been an indistinct sign for him
—“somewhere there” had stood the Libby prison; an indication that
flung over the long years ever so dreary a bridge. He lingered to take
it in—from so far away it came, the strange apparition in the dress of
another day; and with the interest of noting at the same time how
little it mattered for any sort of intensity (whether of regret or of
relief) that the structure itself, so sinister to the mind’s eye, should
have materially vanished. It was still there enough to parade its poor
ghosts, but the value of the ghosts, precisely, was that they
consented, all alike, on either side, to the grand epic dimness. I
recognize, moreover, with the lapse of time, the positive felicity of my
not having to connect them with the ruin of a particular squalid
tobacco-house. The concrete, none the less, did, in the name of
history, await me, and I indeed recollect pursuing it with pertinacity,
for conscience’ sake, all the way down a wide, steep street, a place of
traffic, of shops and offices and altogether shabby Virginia vehicles,
these last in charge of black teamsters who now emphasized for me
with every degree of violence that already-apprehended note of the
negro really at home. It fades, it melts away, with a promptitude of
its own almost, any random reflection of the American picture; and
though the restless analyst has arts of his own for fixing and saving it
—as he at least on occasion fondly flatters himself—he is too often
reduced to wondering what it can have consisted of in a given case
save exactly that projected light of his conscience. Richmond—there
at least was a definite fact—is a city of more or less nobly-precipitous
hills, and he recalls, of his visit to the avenue aforesaid, no
intellectual consequence whatever but the after-sense of having
remounted it again on the opposite side.
It was in succession to this, doubtless, that he found himself
consulting the obscure oracle of the old State House or Capitol, seat
of the Confederate legislature, strange intellectual centre of the
general enterprise. I scarce know in what manner I had expected it to
regale either my outward or my inward sense; one had vaguely heard
that it was “fine” and at the height, or in the key, of the old Virginian
dignity. The approach to it had been adorned, from far back,
moreover, as one remembered, with Crawford’s celebrated
monument to Washington attended by famous Virginians—which
work indeed, I promptly perceived, answered to its reputation, with a
high elegance that was quite of the mid-century, and yet that,
indescribably archaic, made the mid-century seem remote and
quaint and queer, as disconnected from us as the prolific age of
Cyprus or of Crete. It is positive that of the “old” American sculpture,
about the Union, a rich study might be made. What shall I say of this
spot at large, and of the objects it presented to view, if not that here,
where all the elements of life had been most in fiery fusion,
everything was somehow almost abjectly frigid and thin? The small
shapeless Square, ancient acropolitan seat, ill placed on its
eminence, showed, I recollect, but a single figure in motion—that of a
gentleman to whom I presently put a question and who explained to
me that the Capitol, masked all round in dense scaffolding, though
without a labourer visible, had been “very bad,” a mere breakable
shell, and was now, from top to bottom, in course of reconstruction.
The shell, one could see, was empty and work suspended; and I had
never, truly, it seemed to me, seen a human institution so coldly and
logically brought low as this memorial mass, anything rewritten so
mercilessly small as this poor passage of a great historic text. The
effect was as of a page of some dishonoured author—printed “on grey
paper with blunt type,” and when I had learned from my informant
that a fairly ample white house, a pleasant, honest structure in the
taste of sixty or eighty years since, had been Jefferson Davis’s official
residence during part of the War, every source of interest had been
invoked and had in its measure responded. The impression obeys, I
repeat, a rigorous law—it irremediably fades, it melts away; but was
there not, further, as a feature of the scene, one of those decent and
dumb American churches which are so strangely possessed of the
secret of minimizing, to the casual eye, the general pretension of
churches?
The extent to which the American air affects one as a non-
conductor of such pretensions is, in the presence of these
heterogeneous objects, a constant lively lesson. Looking for the most
part no more established or seated than a stopped omnibus, they are
reduced to the inveterate bourgeois level (that of private,
accommodated pretensions merely) and fatally despoiled of the fine
old ecclesiastical arrogance. This, the richest attribute they elsewhere
enjoy, keeps clear of them only to betray them, so that they remind
one everywhere of organisms trying to breathe in the void, or of
those creatures of the deep sea who change colour and shrink, as one
has heard, when astray in fresh water. The fresh water makes them
indeed pullulate, but to the loss of “importance,” and nothing could
more have fallen in with that generalization, for the restless analyst,
than the very moral of the matter, as he judged, lately put before him
at the national capital. Washington already bristles, for the
considering eye, with national affirmations—big builded forms of
confidence and energy; but when you have embraced them all, with
the implication of all the others still to come, you will find yourself
wondering what it is you so oddly miss. Numberless things are
represented, and one interest after the other counts itself in; the
great Congressional Library crowns the hill beside the Capitol, the
Departments and Institutes cover their acres and square their
shoulders, the obelisk to the memory of Washington climbs still
higher; but something is absent more even than these masses are
present—till it at last occurs to you that the existence of a religious
faith on the part of the people is not even remotely suggested. Not a
Federal dome, not a spire nor a cornice pretends to any such
symbolism, and though your attention is thus concerned with a mere
negative, the negative presently becomes its sharp obsession. You
reach out perhaps in vain for something to which you may familiarly
compare your unsatisfied sense. You liken it perhaps not so much to
a meal made savourless by the failure of some usual, some central
dish, as to a picture, nominally finished, say, where the canvas
shows, in the very middle, with all originality, a fine blank space.
For it is most, doubtless, the æsthetic appetite in you—long richly
fed elsewhere—that goes unassuaged; it is your sense of the
comprehensive picture as a comprehensive picture that winces, for
recognition of loss, like a touched nerve. What is the picture,
collectively seen, you ask, but the portrait, more or less elaborated, of
a multitudinous People, of a social and political order?—so that the
effect is, for all the world, as if, with the body and the limbs, the
hands and feet and coat and trousers, all the accessories of the figure
showily painted, the neat white oval of the face itself were innocent
of the brush. You marvel at the personage, you admire even the
painting—which you are largely reduced, however, to admiring in the
hands and the boots, in the texture of accompanying table-cloth,
inkstand, newspaper (introduced with a careless grace) and other
paraphernalia. You wonder how he would look if the face had been
done; though you have compensation, meanwhile, I must certainly
add, in your consciousness of assisting, as you apprehensively stand
there, at something new under the sun. The size of the gap, the
intensity of the omission, in the Washington prospect, where so
much else is representative, dots with the last sharpness the distinct
i, as it were, of one of the promptest generalizations of the
repatriated absentee. The field of American life is as bare of the
Church as a billiard-table of a centre-piece; a truth that the myriad
little structures “attended” on Sundays and on the “off” evenings of
their “sociables” proclaim as with the audible sound of the roaring of
a million mice. Or that analogy reinsists—of the difference between
the deep sea of the older sphere of spiritual passion and the shallow
tide in which the inhabiting particles float perforce near the surface.
And however one indicates one’s impression of the clearance, the
clearance itself, in its completeness, with the innumerable odd
connected circumstances that bring it home, represents, in the
history of manners and morals, a deviation in the mere measurement
of which hereafter may well reside a certain critical thrill. I say
hereafter because it is a question of one of those many
measurements that would as yet, in the United States, be premature.
Of all the solemn conclusions one feels as “barred,” the list is quite
headed, in the States, I think, by this particular abeyance of
judgment. When an ancient treasure of precious vessels, overscored
with glowing gems and wrought, artistically, into wondrous shapes,
has, by a prodigious process, been converted, through a vast
community, into the small change, the simple circulating medium of
dollars and “nickels,” we can only say that the consequent
permeation will be of values of a new order. Of what order we must
wait to see.
All of which remarks would constitute a long excursion, I admit,
from the sacred edifice by the Richmond street, were it not for that
saving law, the enrichment of each hour on the American scene, that
wings almost any observed object with a power to suggest, a possible
social portée, soaring superior to its plain face. And I seem to recover
the sense of a pretext for incurable mooning, then and there, in my
introduction, but little delayed, to the next in the scant group of local
lions, the usual place of worship, as I understood, of the Confederate
leader, from his proper pew in which Jefferson Davis was called, on
that fine Sunday morning of the spring-time of 1865, by the news of
Lee’s surrender. The news had been big, but the place of worship was
small, and, linger in it as one would, fraternize as one would with the
mild old Confederate soldier, survivor of the epic age, who made, by
his account, so lean a living of his office of sexton, one could but
moodily resent, again, its trivialization of history—a process one
scarce knows how to name—its inaccessibility to legend. Perhaps,
after all, it represented, in its comfortable “denominational”
commonness, the right scene of concentration for the promoters of
so barren a polity, that idea of the perpetual Southern quarantine;
but no leaders of a great movement, a movement acclaimed by a
whole nation and paid for with every sacrifice, ever took such pains,
alas, to make themselves not interesting. It was positively as if legend
would have nothing to say to them; as if, on the spot there, I had seen
it turn its back on them and walk out of the place. This is the horse,
ever, that one may take to the water, but that drinks not against his
will. That was at least what it came back to—for the musing moralist:
if the question is of legend we dig for it in the deposit of history, but
the deposit must be thick to have given it a cover and let it
accumulate. It was on the battlefields and in all the blood-drenched
radius that it would be thick; here, decidedly, in the streets of
melancholy Richmond, it was thin. Just so, since it was the planners
and plotters who had bidden unsuccessfully for our interest, it was
for the sacrificed multitude, the unsophisticated, irresponsible
agents, the obscure and the eminent alike, that distinction might be
pleaded. They were buried, if one would, in the “deposit”—where the
restless analyst might scratch, all tenderly, to find them.
He had fortunately at this moment his impression as to where,
under such an impulse, he had best look; and he turned his steps, as
with an appetite for some savour in his repast still too much withheld
to that Museum of the relics of the Confederacy installed some years
since in the eventual White House of Richmond, the “executive
mansion” of the latter half of the War. Here, positively, the spirit
descended—and yet all the more directly, it seemed to me, strange to
say, by reason of the very nudity and crudity, the historic, the
pathetic poverty of the exhibition. It fills the whole large house, each
of the leagued States enjoying an allotted space; and one assuredly
feels, in passing from room to room, that, up and down the South, no
equal area can so offer itself as sacred ground. Tragically,
indescribably sanctified, these documentary chambers that
contained, so far as I remember, not a single object of beauty, scarce
one in fact that was not altogether ugly (so void they were of intrinsic
charm), and that spoke only of the absence of means and of taste, of
communication and resource. In these rude accents they phrased
their interest—which the unappeased visitor, from the moment of his
crossing the general threshold, had recognized in fact as intense. He
was at his old trick: he had made out, on the spot, in other words,
that here was a pale page into which he might read what he liked. He
had not exchanged ten words of civility with a little old lady, a person
soft-voiced, gracious, mellifluous, perfect for her function, who,
seated by her fire in a sort of official ante-room, received him as at
the gate of some grandly bankrupt plantation—he had not
surrendered to this exquisite contact before he felt himself up to his
neck in a delightful, soothing, tepid medium, the social tone of the
South that had been. It was but the matter of a step over—he was
afloat on other waters, and had remounted the stream of Time. I said
just now that nothing in the Museum had beauty; but the little old
lady had it, with her thoroughly “sectional” good manners, and that
punctuality and felicity, that inimitability, one must again say, of the
South in her, in the patriotic unction of her reference to the sorry
objects about, which transported me as no enchanted carpet could
have done. No little old lady of the North could, for the high tone and
the right manner, have touched her, and poor benumbed Richmond
might now be as dreary as it liked: with that small observation made
my pilgrimage couldn’t be a failure.
The sorry objects about were old Confederate documents, already
sallow with time, framed letters, orders, autographs, extracts, tatters
of a paper-currency in the last stages of vitiation; together with faded
portraits of faded worthies, primitive products of the camera, the
crayon, the brush; of all of which she did the honours with a gentle
florid reverence that opened wide, for the musing visitor, as he
lingered and strolled, the portals, as it were, of a singularly
interesting “case.” It was the case of the beautiful, the attaching
oddity of the general Southern state of mind, or stage of feeling, in
relation to that heritage of woe and of glory of which the mementos
surrounded me. These mementos were the sorry objects, and as I
pursued them from one ugly room to another—the whole place
wearing the air thus, cumulatively, of some dim, dusty collection of
specimens, prehistoric, paleolithic, scientific, and making one grope
for some verbal rendering of the grey effect—the queer elements at
play wrote themselves as large as I could have desired. On every side,
I imagine, from Virginia to Texas, the visitor must become aware of
them—the visitor, that is, who, by exception, becomes aware of
anything: was I not, for instance, presently to recognize them, at
their finest, for an almost comic ambiguity, in the passionate flare of
the little frontal inscription behind which the Daughters of the
Confederacy of the Charleston section nurse the old wrongs and the
old wounds? These afflictions are still, thus, admirably ventilated,
and what is wonderful, in the air, to-day, is the comfort and cheer of
this theory of an undying rancour. Every facility is enjoyed for the
publication of it, but as the generation that immediately suffered and
paid has almost wholly passed away, the flame-coloured idea has
flowered out of the fact, and the interest, the “psychologic” interest,
is to see it so disengage itself, as legend, as valuable, enriching,
inspiring, romantic legend, and settle down to play its permanent
part. Practically, and most conveniently, one feels, the South is
reconciled, but theoretically, ideally, and above all for the new
generation and the amiable ladies, the ladies amiable like the
charming curatrix of the Richmond Museum, it burns with a
smothered flame. As we meanwhile look about us there, over a scene
as sad, throughout, as some raw spring eventide, we feel how
something of the sort must, in all the blankness, respond morally and
socially to a want.
The collapse of the old order, the humiliation of defeat, the
bereavement and bankruptcy involved, represented, with its obscure
miseries and tragedies, the social revolution the most unrecorded
and undepicted, in proportion to its magnitude, that ever was; so
that this reversion of the starved spirit to the things of the heroic age,
the four epic years, is a definite soothing salve—a sentiment which
has, moreover, in the South, to cultivate, itself, intellectually, from
season to season, the field over which it ranges, and to sow with its
own hands such crops as it may harvest. The sorry objects, at
Richmond, brought it home—so low the æsthetic level: it was
impossible, from room to room, to imagine a community, of equal
size, more disinherited of art or of letters. These about one were the
only echoes—daubs of portraiture, scrawls of memoranda, old vulgar
newspapers, old rude uniforms, old unutterable “mid-Victorian”
odds and ends of furniture, all ghosts as of things noted at a country
fair. The illiteracy seemed to hover like a queer smell; the social
revolution had begotten neither song nor story—only, for literature,
two or three biographies of soldiers, written in other countries, and
only, for music, the weird chants of the emancipated blacks. Only for
art, I was an hour later to add, the monument to General Lee by M.
Mercié of Paris; but to that, in its suburban corner, and to the
strange eloquence of its isolation, I shall presently come. The moral
of the show seemed to me meanwhile the touching inevitability, in
such conditions, of what I have called the nursing attitude. “What on
earth—nurse of a rich heroic past, nurse of a fierce avenging future,
nurse of any connection that would make for any brood of visions
about one’s knee—wouldn’t one have to become,” I found myself
inwardly exclaiming, “if one had this great melancholy void to
garnish and to people!” It was not, under this reflection, the actual
innocent flare of the altar of memory that was matter for surprise,
but that such altars should strike one, rather, as few and faint. They
would have been none too many for countenance and cheer had they
blazed on every hilltop.
The Richmond halls, at any rate, appeared, through the chill of the
season, scantly trodden, and I met in them no fellow-visitor but a
young man of stalwart and ingenuous aspect who struck me so
forcibly, after a little, as exhaling a natural piety that, as we
happened at last to be rapt in contemplation of the same sad glass
case, I took advantage of the occasion to ask him if he were a
Southerner. His affirmative was almost eager, and he proved—for all
the world like the hero of a famous novel—a gallant and nameless, as
well as a very handsome, young Virginian. A farmer by occupation,
he had come up on business from the interior to the capital, and,
having a part of his morning on his hands, was spending it in this
visitation—made, as I gathered, by no means for the first time, but
which he still found absorbing. As a son of the new South he
presented a lively interest of type—linguistically not least (since
where doesn’t the restless analyst grope for light?)—and this interest,
the ground of my here recalling him, was promptly to arrive at a
climax. He pointed out to me, amid an array of antique regimentals,
certain objects identical with relics preserved in his own family and
that had belonged to his father, who, enrolled at the earliest age, had
fought to the end of the War. The old implements before us bore the
number of the Virginia regiment in which this veteran had first seen
service, and a question or two showed me how well my friend was
acquainted with his parent’s exploits. Enjoying, apparently—for he
was intelligent and humorous and highly conversable—the
opportunity to talk of such things (they being, as it were, so
advantageously present there with a vague Northerner), he related,
felicitously, some paternal adventure of which I have forgotten the
particulars, but which comprised a desperate evasion of capture, or
worse, by the lucky smashing of the skull of a Union soldier. I
complimented him on his exact knowledge of these old, unhappy,
far-off things, and it was his candid response that was charmingly
suggestive. “Oh, I should be ready to do them all over again myself!”
And then, smiling serenely, but as if it behoved even the least blatant
of Northerners to understand: “That’s the kind of Southerner I am!” I
allowed that he was a capital kind of Southerner, and we afterwards
walked together to the Public Library, where, on our finally parting, I
could but thank him again for being so much the kind of Southerner
I had wanted. He was a fine contemporary young American,
incapable, so to speak, of hurting a Northern fly—as Northern; but
whose consciousness would have been poor and unfurnished without
this cool platonic passion. With what other pattern, personal views
apart, could he have adorned its bare walls? So I wondered till it
came to me that, though he wouldn’t have hurt a Northern fly, there
were things (ah, we had touched on some of these!) that, all fair,
engaging, smiling, as he stood there, he would have done to a
Southern negro.
IV
The Public Libraries in the United States are, like the Universities,
a challenge to fond fancy; by which I mean that, if, taken together,
they bathe the scene with a strange hard light of their own, the
individual institution may often affect the strained pilgrim as a
blessedly restful perch. It constitutes, in its degree, wherever met, a
more explicit plea for the amenities, or at least a fuller exhibition of
them, than the place is otherwise likely to contain; and I remember
comparing them, inwardly, after periods of stress and dearth, after
long, vacant stretches, to the mast-heads on which spent birds
sometimes alight in the expanses of ocean. Their function for the
student of manners is by no means exhausted with that attribute—
they project, through the use made of them, twenty interesting
sidelights; but it was by that especial restorative, that almost
romantic character I have just glanced at, that I found myself most
solicited. It is to the inordinate value, in the picture, of the non-
commercial, non-industrial, non-financial note that they owe their
rich relief; being, with the Universities, as one never wearied of
noting, charged with the whole expression of that part of the national
energy that is not calculable in terms of mere arithmetic. They
appeared to express it, at times, I admit, the strange national energy,
in terms of mere subjection to the spell of the last “seller”—the new
novel, epidemically swift, the ubiquity of which so mirrors the great
continental conditions of unity, equality and prosperity; but this view
itself was compatible with one’s sense of their practical bid for the
effect of distinction. There are a hundred applications of the idea of
civilization which, in a given place, outside its Library, would be all
wrong, if conceivably attempted, and yet that immediately become
right, incur in fact the highest sanction, on passing that threshold.
They often more or less fail of course, they sometimes completely
fail, to assert themselves even within the precinct; but one at least
feels that the precinct attends on them, waits and confessedly yearns
for them, consents indeed to be a precinct only on the understanding
that they shall not be forever delayed. I wondered, everywhere, under
stress of this perception, at the general associations of the word that
best describes them and that remains so quaintly and admirably
their word even when their supreme right in it is most vulgarly and
loudly disputed. They are the rich presences, even in the “rich”
places, among the sky-scrapers, the newspaper-offices, the highly-
rented pews and the billionaires, and they assert, with a blest
imperturbable serenity, not only that everything would be poor
without them, but that even with them much is as yet deplorably
poor. They in fact so inexorably establish this truth that when they
are in question they leave little to choose, I think, round about them,
between the seats of wealth and the seats of comparative penury:
they are intrinsically so much more interesting than either.
Was it then because Richmond at large, the “old” Richmond,
seemed to lie there in its icy shroud with the very dim smile of
modesty, the invalid gentleness, of a patient who has been freely bled
—was it through profit of this impression that the town Library
struck me as flushing with colour and resource, with confidence and
temperament? The beauty of the matter is that these penetralia, to
carry it off as they do, call to their aid, of necessity, no great store of
possessions—play their trick, if they must, with the mildest rarities.
It sufficed, really, at Richmond, that the solid structure—ample and
detached indeed, and keeping, where it stood, the best company the
place could afford—should make the affirmation furthest removed
from the vain vaunt of the other time, the pretence of a social order
founded on delusions and exclusions. Everything else was somehow,
however indirectly, the bequest of that sad age and partook more or
less of its nature; this thing alone either had nothing to do with it or
had to do with it by an appealing, a quite affecting lapse of logic—his
half-hour’s appreciation of which had for the restless analyst a
positive melancholy sweetness. The place had of course to be in its
way a temple to the Confederate cause, but the charm, in the
spacious, “handsome,” convenient upper room, among books of
value and pictures of innocence, and glass cases of memorabilia
more refined than those of the collection I had previously visited,
among gentle readers, transported and oblivious, and the still gentler
specimens, if I rightly recollect, of the pale sisterhood of the
appointed and attendant fair who predominantly, throughout the
States, minister to intellectual appetite and perform the intellectual
service, directing and controlling them and, as would appear,
triumphantly minimizing their scope, feminizing their too possible
male grossnesses—the charm, I say, was now in the beautiful
openness to the world-relation, in the felt balm, really, of the
disprovincializing breath. Once such a summer air as that had begun
softly to stir, even the drearier little documents might flutter in it as
confederately as they liked. The terrible framed canvases, portraits of
soldiers and statesmen, strange images, on the whole, of the
sectional great, might seem to shake, faintly, on the wall, as in vague
protest at a possible doom. Disinherited of art one could indeed, in
presence of such objects, but feel that the old South had been; and
might not this thin tremor, on the part of several of those who had
had so little care for it, represent some sense of what the more liberal
day—so announced there on the spot—might mean for their meagre
memories?
This was a question, however, that it naturally concerned me not
to put to the old mutilated Confederate soldier who, trafficking in
photographs in a corner of the room, rejoiced to proclaim the
originals of the portraits. Nothing could have been a happier link
than the old Confederate soldier—a link as from past to present and
future, I mean, even when individually addicted to “voicing” some of
the more questionable claims of the past. What will they be, at all
events, the Southern shrines of memory, on the day the last old
Confederate soldier shall have been gathered to his fate? Never,
thanks to a low horizon, had the human figure endowed with almost
anything at all in the nature of a presence or a silhouette such a
chance to stand out; never had the pictorial accident, on a vast grey
canvas, such a chance to tell. But a different matter from these, at
Richmond, in fact the greatest matter of all, is the statue of General
Lee, which stands, high aloft and extraordinarily by itself, at the far
end of the main residential street—a street with no imputable
“character” but that of leading to it. Faithful, experimentally, to a
desperate practice, I yet had to renounce here—in the main
residential street—the subtle effort to “read” a sense into the
senseless appearances about me. This ranked, I scarce know why, as
a disappointment: I had presumed with a fond extravagance, I have
hinted, that they would give out here and there some unmistakable
backward reference, show, from the old overclambered but
dispeopled double galleries that I might liken to desecrated cloisters,
some wan, faded face of shrunken gentility. Frankly, however, with
the best will in the world—really too good a will, which found itself
again and again quite grimly snubbed—frankly I could do nothing:
everything was there but the material. The disposition had been a
tribute to old Virginia, but old Virginia quite unceremoniously
washed her hands of me. I have spoken of scratching, scratching for
romance, and all tenderly, in the deposit of history; but, plainly, no
deposit would show, and I tried to remember, for fairness, that
Richmond had been after all but a modern and upstart capital.
Indistinct there, below the hill, was the James River, and away in the
mists of time “romantic” Jamestown, the creation of a Stuart king.
That would have to do, though it also, in its way, was nothing; for
meanwhile in truth, just here—here above all and in presence of the
monument completing the vista—were other things to remember,
provoked reflections that took on their own intensity.
The equestrian statue of the Southern hero, made to order in far-
away uninterested Paris, is the work of a master and has an artistic
interest—a refinement of style, in fact, under the impression of which
we seem to see it, in its situation, as some precious pearl of ocean
washed up on a rude bare strand. The very high florid pedestal is of
the last French elegance, and the great soldier, sitting his horse with
a kind of melancholy nobleness, raises his handsome head as he
looks off into desolate space. He does well, we feel, to sit as high as
he may, and to appear, in his lone survival, to see as far, and to
overlook as many things; for the irony of fate, crowning the picture,
is surely stamped in all sharpness on the scene about him. The place
is the mere vague centre of two or three crossways, without form and
void, with a circle half sketched by three or four groups of small, new,
mean houses. It is somehow empty in spite of being ugly, and yet
expressive in spite of being empty. “Desolate,” one has called the air;
and the effect is, strangely, of some smug “up-to-date” specimen or
pattern of desolation. So long as one stands there the high figure,
which ends for all the world by suggesting to the admirer a quite
conscious, subjective, even a quite sublime, effort to ignore, to sit, as
it were, superior and indifferent, enjoys the fact of company and
thereby, in a manner, of sympathy—so that the vast association of
the futile for the moment drops away from it. But to turn one’s back,
one feels, is to leave it again alone, communing, at its altitude, which
represents thus some prodigious exemplary perched position, some
everlasting high stool of penitence, with the very heaven of futility.
So at least I felt brought round again to meeting my first surprise, to
solving the riddle of the historic poverty of Richmond. It is the
poverty that is, exactly, historic: once take it for that and it puts on
vividness. The condition attested is the condition—or, as may be, one
of the later, fainter, weaker stages—of having worshipped false gods.
As I looked back, before leaving it, at Lee’s stranded, bereft image,
which time and fortune have so cheated of half the significance, and
so, I think, of half the dignity, of great memorials, I recognized
something more than the melancholy of a lost cause. The whole
infelicity speaks of a cause that could never have been gained.
XIII
CHARLESTON
I
To arrive at Charleston early in the chill morning was to appear to
have come quite adventurously far, and yet to be not quite clear
about the grounds of the appearance. Did it rest on impressions
gathered by the way, on the number of things one had been, since
leaving Richmond, aware of?—or was it rather explained by the long
succession of hours, the nights and days, consumed as mere tasteless
time and without the attending relish of excited interest? What,
definitely, could I say I had seen, that my journey should already
presume to give itself airs, to seat itself there as a chapter of
experience? To consider of this question was really, I think, after a
little, to renew one’s appreciation of the mystery and the marvel of
experience. That accretion may amount to an enormous sum, often,
when the figures on the slate are too few and too paltry to mention. It
may count for enrichment without one’s knowing why; and so again,
on occasion, with a long column of items, it may count for nothing at
all. I reached Charleston ever so much (as it seemed to me) the wiser
—the wiser, that is, for the impression of scarce distinguishable
things. One made them out, with no great brilliancy, as just
Southern; but one would have missed the point, I hasten to add, in
failing to see what an application and what a value they derived from
that name. One was already beginning—that was the truth—one’s
convenient induction as to the nature of the South; and, once that
account was opened, how could everything, great or small, positive
or negative, not become straightway a contribution to it? The large
negatives, in America, have, as well as other matters, their meaning

(Ebook PDF) (Ebook PDF) Corporations Legislation 2019 All Chapter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

(Ebook PDF) (Ebook PDF) Corporations Legislation 2019 All Chapter

Uploaded by

Copyright:

Available Formats

(eBook PDF) Corporations Legislation

(eBook PDF) Fundamental Tax Legislation 2019 By Pinto

(eBook PDF) Core Tax Legislation and Study Guide 2019

(eBook PDF) Pearson's Federal Taxation 2019

(eBook PDF) Corporations and Other Business

Merchant Shipping Legislation 3rd Edition

(eBook PDF) Concise Tax Legislation 2021

(eBook PDF) Fundamental Tax Legislation 2021

(eBook PDF) Translational Medicine in CNS Drug

• Corporations Amendment (Crowd-sourced Funding for Proprietary Companies) Act 2018

viii Corporations Legislation 2019

Corporations (Fees) Act 2001

x Corporations Legislation 2019

“EFFECTIVE 1 JULY 2019”

Amending legislation Number Date of gazettal/assent/ Date of commencement

Corporations Regulations 2001 (Cth)

Amending legislation Number Date of gazettal/assent/ Date of commencement

Australian Securities and Investments Commission Act 2001 (Cth)

© 2019 THOMSON REUTERS xi

Amending legislation Number Date of gazettal/assent/ Date of commencement

Corporations (Fees) Regulations 2001 (Cth)

Amending legislation Number Date of gazettal/assent/ Date of commencement

• Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 – passed

xiv Corporations Legislation 2019

© 2019 THOMSON REUTERS xv

xviii Corporations Legislation 2019

Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Act 2018

xxii Corporations Legislation 2019

xxiv Corporations Legislation 2019

You might also like