Insolvent Corporate Trustees – a way forward to realising trust assets

The recent decision of Cremin, in the matter of Brimson Pty Ltd (In Liquidation) [2019] FCA 1023 (Cremin) helpfully clarifies the approach practitioners ought to adopt when realising the assets of an insolvent corporate trustee. Here, the liquidator was appointed to three companies which each operated “Snooze” franchises in their capacity as trustee of a […]

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Queensland Supreme Court considers “unconventional” forms of security for costs and whether expert reports are privileged and not required to be disclosed

The case of Murphy v Gladstone Ports Corporation Ltd [2019] QSC 12 (Murphy v Gladstone Ports) examines whether: A deed of indemnity issued by a foreign company, coupled with the payment of money into Court for the purposes of enforcing the deed of indemnity in the foreign jurisdiction, is sufficient security for the purposes of […]

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Concurrent appointments and priority creditors – who may distribute pursuant to section 561 of the Corporations Act?

In Kirman v RWE Robinson & Sons Pty Ltd (in liq), in the matter of RWE Robinson and Sons Pty Ltd (in liq) [2019] FCA 372, the Court helpfully clarifies who is entitled to make payments to priority creditors in scenarios where receivers and liquidators are concurrently appointed.   Background RWE Robinson & Sons Pty Ltd […]

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Court criticises ASIC for lack of evidence to support inquiry into liquidators

The recent Supreme Court of NSW decision of ASIC v Wily & Hurst, provides useful guidance regarding the Court’s criteria to inquire into a liquidator’s conduct under former section 536 of the Corporations Act 2001(Cth). The decision is relevant as to how a Court may determine such an application made under the Insolvency Practice Schedule (Corporations). The decision […]

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Liquidators settling court proceedings: the importance of creditors’ wishes

As is illustrated by the recent Supreme Court of Victoria Court of Appeal decision in McDermott and Potts as liquidators of Lonnex Pty Ltd (in liquidation), creditors’ wishes are important when a liquidator is looking to settle court proceedings. Though liquidators should not act at the dictation of creditors, it is important to bear in […]

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Court endorses close oversight of conduct of liquidation by priority creditors including FEG and GEERS

In the matter of 1st Fleet Pty Ltd (in liquidation), the Commonwealth applied for orders that the liquidators of 10 companies in liquidation provide specific information and/or produce certain documents to the Commonwealth. This request related to the validity of the constitution of and certain steps taken by the Committee of Inspection and the reasonableness […]

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To Make Oath and Say or to Declare and Affirm?

On 1 March 2019, the Oaths and Affirmations Act 2018 (Vic) (the Act) came into effect and is now the ‘go to’ piece of legislation for the law relating to oaths, affirmations, affidavits and statutory declarations in Victoria. It has also established a scheme for the certification of copies of documents. Essentially, the Act has […]

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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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