When is it too late? The equitable right to discharge a mortgage right before the fall of the auctioneer’s hammer

In Six Bruce Pty Ltd v Jadig Finance Pty Ltd [2018] VSC 552, the Supreme Court of Victoria considered whether the Court should grant an urgent interlocutory injunction to stop an auction the very next day on the basis that the defaulting mortgagor had secured an unconditional offer to refinance. What happened? Six Bruce Pty […]

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Two for one: The Court may issue two arrest warrants for failure to attend an examination

The appeal of the decision of the Federal Court in the case of Mensink v Parbery [2018] FCAFC 101 examines the governing principles the Court considers when granting: an arrest warrant to secure appearance at an examination; and an order for contempt of court for failing to comply with an order requiring attendance for examination. […]

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Mere assertion is not enough: The Federal Court provides a reminder of the evidence required to set aside a creditor’s statutory demand for genuine dispute

In Aussie Hoist Property Pty Ltd v Mulqueen [2018] FCA 1493, the Federal Court has given a timely reminder that a company receiving a creditor’s statutory demand (Stat Demand) cannot have that Stat Demand set aside on the basis of genuine dispute as to the existence or amount of the relevant debt merely by asserting […]

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Linc Energy: Special leave refused by High Court

In the final instalment of the Linc Energy Case,[1] the High Court has refused to grant the Queensland State Government special leave to appeal a decision of the Queensland Court of Appeal with respect to the liability of liquidators to comply with an environmental protection order (EPO). Background The litigation has been ongoing since 2016 […]

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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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