Buy Now Pay Later: Industry awaiting Issues Paper with bated breath

For better or worse, the Buy Now Pay Later (BNPL) industry has continued to make headlines since our last report. The sector’s meteoric rise has been tempered in recent months by a combination of market saturation, broader macroeconomic factors, and, most recently, a new political climate. The new Labor Government has made clear its intentions […]

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Federal Court takes aim at expert’s ‘independent’ evidence: When lawyers can taint an expert’s report

The case of New Aim Pty Ltd v Leung [2022] FCA 722 concerned a dispute between an e-commerce company and its former employees regarding the use of confidential information acquired during the course of employment. A significant issue in the case, which is the focus of this article, was whether the Court should reject an […]

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Directors beware – personal recovery orders made where director’s duties breached

In the matter of Bryve Resources Pty Ltd [2022] NSWSC 647, the Court accepted the liquidator’s evidence of alleged breaches and found the company’s sole director breached his director’s duties, including failing to act with due care and skill, or in the best interest of the company and its creditors, when allowing the company to […]

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You’ve been served! Federal Court of Australia affirms recent amendments to modernise the Corporations Act

In Bioaction Pty Ltd -v- Ogborne, in the matter of Bioaction Pty Ltd [2022] FCA 436 (Bioaction), her Honour Justice Cheeseman considered whether an application to set aside a statutory demand was served within the 21-day period as provided for in Section 459G of the Corporations Act 2001 (Cth) (the Act). In deciding this matter, […]

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Power to sell – Federal Court exercises discretion to allow company to realise trust assets

In Brooks, in the matter of Tease Hair & Spa Pty Ltd (in liquidation),[1] the Federal Court made orders in favour of the Liquidator, pursuant to section 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) (Insolvency Practice Schedule (Corporations)) and section 47 of the Trustee Act 1989 (Tas) allowing the Liquidator to realise […]

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Shell company leads to successful unconscionable conduct claim for ‘wilful blindness’

The High Court has resolved to hold lenders responsible where they are wilfully blind to the position of a guarantor or take advantage of an individual’s lack of business acumen or financial resources. This extended to the use of independent legal and financial advice certificates (certificates) in relation to asset-based lending. The decision serves as […]

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Proposed amendments to the Betting and Racing Regulation and the definition of an inducement

The Betting and Racing Regulation 2012 (NSW) (Betting and Racing Regulation) and Totalizator Regulation 2012 (NSW) will be repealed on 1 September 2022. In anticipation of the expiration of these regulations, Liquor and Gaming NSW (L&GNSW) have released the following draft regulations for consideration and feedback: Draft Betting and Racing Regulation 2022; and Draft Totalizator […]

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Considering Conflicts: Queensland Supreme Court rejects application to restrain liquidators’ choice of representation

This matter involved the former director and former accountant of CGS Constructions (QLD) Pty Ltd filing proceedings seeking an injunction to restrain the Liquidators from engaging Cornwalls Lawyers to act on the basis that: Cornwalls also acted for a substantial creditor, Union Share Pty Ltd; and the Liquidators, by engaging Cornwalls, had manifested a tendency […]

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A cold winter for the A Team – Court freezes funds and assets

Between 31 May 2022 and 7 June 2022, ASIC obtained three freezing orders against the Mr Hopkins and his companies. In doing so, the Federal Court of Australia ordered: 1) the Defendants’ assets be frozen; 2) the disclosure of existing assets to the Court; 3) the appointment of a receiver over digital assets; and 4) […]

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Anti-phoenixing laws demystified: The Victorian Supreme Court considers the creditor-defeating disposition regime

In Re Intellicomms Pty Ltd (in liq) [2022] VSC 228, it was determined that a sale agreement was a creditor-defeating disposition within the meaning of section 588FDB of the Corporations Act 2001 (Cth) (Act) and voidable pursuant to section 588FE(6B) of the Act. The Court held that, the consideration payable by the transaction was less […]

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An easy win? Obtaining summary judgment in the absence of the Defendant

In the matter of Squirrel Limited (In Liquidation), the Court considered an application for summary judgement against a director for insolvent trading. In doing so, the Court considered the principles underpinning a director’s duty to prevent insolvent trading and the compensation payable as a result. Background The first plaintiffs, Mr Brent Kijurina and Mr Richard […]

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Pushing ‘START’ on button battery safety standards – Combating a danger lurking in the household

The new button/coin battery safety standards become mandatory on 22 June 2022. So as a manufacturer, importer, wholesaler or retailer of products that contain button batteries, what do you need to know? Purpose Button batteries are used in a broad range of products around our homes. These include watches, handheld computers and remote controls, key […]

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