Ipso facto reforms: Can I enforce my contractual rights?

Ipso facto clauses are contractual provisions that allow a party to terminate or modify the operation of a contract on the occurrence of a specified event. The Federal Government has introduced reforms which limit the rights of a party to enforce ipso facto clauses in certain insolvency scenarios. The reforms came into effect on 1 […]

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Introducing the Australian Financial Complaints Authority: A Comparison Guide

The Australian Financial Complaints Authority commences on 1 November 2018. We have prepared this guide which sets out some of the key differences between FOS and AFCA and their jurisdiction to consider complaints. Click here to view.  Authored by:  Annette Gaber, Partner Clementine Woodhouse, Associate

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Update on unfair preferences and statutory set-off

One of a liquidator’s most powerful tools is the ability to seek to recover unfair preferences from creditors for the purposes of increasing the pool of assets available to creditors generally. Proceedings to recover unfair preferences can be costly and it is imperative that a liquidator assess not only the evidence available to prove the […]

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Pleash (Liquidator) v Tucker and the production of documents in public examinations: whether trust assets are ‘Examinable Affairs’

In Pleash (Liquidator) v Tucker,[1] the Federal Court makes clear that the scope of ‘examinable affairs’ in public examinations pursuant to section 597(9) of the Corporations Act 2001 (Cth) (the Act) does not extend to assets that are only potentially available to a prospective defendant. For example, this includes a beneficiary’s interest in the assets […]

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High Court decision validates Holding Deeds of Company Arrangement

In Australia of Mighty River International Limited v Hughes, Mighty River International Limited v Mineral Resources Limited [2018] HCA 38, the High Court considered whether a Deed of Company Arrangement (DOCA) contravened Part 5.3A of the Corporations Act 2001 (Cth) (the Act). In particular, the High Court considered whether what is commonly described as a […]

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Unfair preferences and insolvent transactions – ‘knowledge’ of insolvency and the good faith defence

In Stimpson v Commissioner of State Revenue [2018] QDC 140, the District Court of Queensland considers the statutory defence under the Corporations Act 2001 (the Act) to preference or insolvent transaction proceedings. Underlying the decision is the impact increasingly automated processes may have on well-established legal principles regarding evidence of ‘knowledge’ and ‘belief’. This contributed […]

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WA Court of Appeal Overturns First Instance Decision in Hamersley v Forge

To set-off or not to set-off? That was the question recently answered in the affirmative by the West Australian Court of Appeal in Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (Receivers and Managers appointed) [2018] WASCA 163. The Court of Appeal held that the judge at first instance was wrong […]

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Is a new postal rule coming?

On 12 September 2018, the Commonwealth Senate passed the Civil Law and Justice Legislation Amendment Bill 2018 (Cth). This Bill proposes to amend section 160 of the Evidence Act 1995 (Cth).  This section contains the general rule by which a postal article sent by prepaid post is presumed to be received by the recipient on […]

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Relation back day changes

Section 588FE and 588FF of the Corporations Act 2001 (Cth) (Act) operate to make certain transactions by a company voidable within a prescribed period prior to the company entering liquidation/voluntary administration. The relation back day is the date by which the prescribed period begins whereby transactions entered into by the company may be considered void. […]

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Ipso facto reforms – what exceptions apply?

From 1 July 2018, new provisions introduced into the Corporations Act 2001 (Cth) (CA 2001) by the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), impose a stay on the enforcement of ipso facto clauses against a company that becomes subject to certain prescribed insolvency events. Importantly, the changes only apply to […]

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Off duty and off the hook: Directors’ fiduciary duties after resignation

The recent Victorian Supreme Court decision of Advanced Fuels Technology Pty Ltd v Blythe & Ors provides useful guidance regarding the Court’s approach to the survival of a company director’s fiduciary duties after the director’s resignation and whether the Court will restrain his or her ability to compete with the company. The facts Mr Blythe […]

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Rights of a mortgagee dispossessed of land

If you are a mortgagee, or acting for one, you may encounter a situation where you have obtained judgment against a mortgagor for possession of land and, after executing a warrant of possession to gain vacant possession, the mortgagor and/or their associates have unlawfully re-entered the property. In a recent Supreme Court of Victoria case[1] […]

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