Working out your priorities – how employee creditors claims were able to trump research and development tax refunds

In the recent case of In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 340, the NSW Supreme Court has provided clarity on the order of priority for employee debts and secured creditor claims, where the key asset is an entitlement to tax refunds for research and […]

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Missed it by that much: The FCA decides the proper construction of the UCPR in relation to online filing

In a recent case involving a default judgment to recover the sum of an outstanding loan, the Federal Court of Australia considered whether it had jurisdiction to set aside a bankruptcy notice issued against the guarantor of the loan and whether it had jurisdiction to extend the time for compliance with the bankruptcy notice. Background […]

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Court identifies a ‘very poorly drafted deed’ and sets aside Statutory Demand – reminder to have a properly drafted deed to avoid potential disputes

In the matter of Jana Pty Ltd[1] is a decision of the Supreme Court of New South Wales setting aside a Statutory Demand issued for an alleged guaranteed debt arising out of a Deed. The Deed contained conflicting and ambiguous clauses which led to a dispute about the debt specified in the Statutory Demand. This […]

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The Court’s willingness to extend the convening period for a meeting of creditors where the administration is large and complex

In Algeri, in the matter of WBHO Australia Pty Ltd (Administrators Appointed) [2022] FCA 169, the Federal Court heard the second application by the administrators who were seeking an extension to the convening period for the second meeting of creditors, which pursuant to section 439A(5) of the Corporations Act 2001 (Cth) (the Act) was set […]

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Federal Court cracks down on legal privilege claims – An operational hazard for the multi-disciplinary firms?

A multi-disciplinary firm has used legal privilege to shield documents from the ATO during an audit of its multinational clients, a judge has found, in a ruling that has put multi-disciplinary firms on notice. In Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 Federal Court Justice Moshinsky ruled that a legitimate relationship between lawyer and […]

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Federal Court finds RI Advice failed to adequately manage cybersecurity risks

In the landmark decision of Australian Securities and Investments Commission v RI Advice Group Pty Ltd (RI Advice) [2022] FCA 496, the Federal Court found that Australian Financial Services licensee, RI Advice, breached its license obligations to act efficiently and fairly when it failed to have adequate risk management systems to manage its cybersecurity risks. […]

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Disclosure obligations for financial service providers in NSW: One-year on from reforms to the Fair Trading Act 1987 (NSW)

It has been over a year since reforms were introduced under the Fair Trading Act 1987 (NSW) (the Act) requiring suppliers (including of financial services) to take reasonable steps to disclose to their customers prejudicial contract terms and for intermediaries to disclose the arrangement under which they are acting, including referral commissions. The disclosure requirements […]

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Corruption and Integrity Update – Coaldrake interim report in the Queensland public sector released

With the CCC Commission of Inquiry and the Parliamentary Inquiry into the Office of the Independent Assessor ongoing, there has been a noticeable absence of public releases by the CCC and OIA of late. Notably, however, Professor Peter Coaldrake AO released his Interim Report of the Review of culture and accountability in the Queensland public […]

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Was there a foreseeable risk of harm? Supreme Court of Western Australia finds directors were in breach of their statutory and common law directors’ and officers’ duties

Defendants to a proceeding related to a breach of an Asset Sale Agreement, successfully joined directors to the action by way of a third party notice, seeking damages for liability incurred where those directors had breached their directors obligations to discharge their duties with due care and diligence (Section 180(1) of the Corporations Act 2001 (Cth)). […]

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The importance of being cautiously aware of contractual terms relating to insolvency termination events

In the matter of Carna Group Pty Ltd v The Griffin Coal Mining Company (No 6) [2021] FCA 1214, the Court held that Griffin Coal Mining Company (Griffin) was insolvent, without having to prove so under the section 95A Corporations Act 2001 (Cth) (Corporations Act). This was in accordance with a contractual provision where it […]

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Federal Court’s refusal to grant leave to amend pleadings

On 11 February 2022 in Canavan v ICRA Rolleston Pty Ltd (Receivers and Managers Appointed)(in liquidation) [2022] FCA 117 the Federal Court of Australia refused to permit the Plaintiff to amend his points of claim less than two weeks before trial. In considering the legal principles and matters relevant to the exercise of the court’s […]

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How to avoid contaminating an insolvency appointment: when a disclaimer of land may be set aside

In March 2019, Liquidators were appointed to The Australian Sawmilling Company Pty Ltd (TASCO) by way of a creditors’ voluntary winding up. TASCO owned a large lot of contaminated land – there were stockpiles of construction and demolition waste resulting from a former licensee conducting a materials recycling business. Close to a year before this, […]

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