Importance of properly formulating offers made in proceedings involving counterclaims

In Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd[1], the Queensland Court of Appeal considered the costs implications of an ‘all up’ offer made under the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) and whether it could determine the ‘net result’ of two orders (each order made in […]

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“Let there be a vote” – Victorian Supreme Court grants adjournment under recent Small Business Restructuring Reforms

In Re Dessco Pty Ltd,[1] the Victorian Supreme Court adjourned a winding up application for 50 days to allow time for creditors to vote on a restructuring plan. Whilst the adjournment was opposed by the Plaintiff, the Judicial Registrar of the Court accepted the assessment formed by the Small Business Restructuring Practitioner that the company […]

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Can parties to a mortgage contract out of a statutory limitation period? Yes, according to the High Court

Dismissing an appeal from the Supreme Court of Queensland, the High Court of Australia in Price v Spoor[1] considered three principle questions: Whether parties to a mortgage can agree that the mortgagor will not plead a defence of statutory time limitation, or whether such an agreement is void and unenforceable as contrary to public policy; […]

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Impact on mortgagees of a bankruptcy trustee’s disclaimer of mortgaged land

A mortgagee may be faced with a situation where the mortgagor becomes bankrupt and the trustee, in which the property then vests, disclaims the mortgaged property. We outline the process a mortgagee is required to follow when a mortgaged property has been disclaimed and summarise the key issues considered by the Court. Click below to […]

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ATO on the watch after liquidators claw back funds despite a Deed of Company Arrangement

In the matter of Western Port Holdings Pty Ltd (receivers and managers appointed)(in liq) [2021] NSWSC 232, Deed Administrators who were subsequently appointed Liquidators of Western Port Holdings Pty Ltd (the Company) clawed back over $2 million worth of payments made to the Australian Taxation Office (ATO) whilst the Company was subject to a Deed […]

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Federal Court approves administrators’ entry into funding deed to trade company pending sale

Section 90-15 of the Insolvency Practice Schedule (the IPS) confers on Courts wide powers to adjust rights related to companies in external administration. Here, the administrators of a mining group obtained orders approving their entry into a deed to fund the ongoing operation of the group pending sale and limiting their liability under the deed […]

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Federal Court considers whether bankrupt’s property should vest in mortgagees following disclaimer by bankruptcy trustee

The Federal Court’s recent decision in Kellendonk[1] concerned a $350,000 loan made by the applicants, Mr and Mrs Kellendonk, to Ms Maria Jasienska-Dudek to help her buy a property in Midland, Western Australia (Property). Ms Jasienska-Dudek defaulted under the loan agreement and the parties subsequently entered an informal agreement which, after Ms Jasienska-Dudek became a […]

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It’s a brave new world: NZ and Australian courts join to determine a high profile, cross-border insolvency

Cross-border insolvency has ventured into new territory as a judgment is released from the first contemporaneous sitting of the Federal Court of Australia and the High Court of New Zealand. Liquidators originally sought separate directions from each Court regarding the distribution of funds from the insolvency of Halifax New Zealand Ltd (Halifax NZ) and Halifax […]

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Drawing Inferences – the extent that evidence can be inferred

In Ross, in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias,[1] the Federal Court considered the extent to which a Jones v Dunkel[2] inference can be made. There were three factual issues to be determined by the Court and both parties relied heavily on inferences to prove their case. Ultimately, […]

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The ‘Constitutional Imperative’ – a bankrupt’s right to review a sequestration order

In Bechara v Bates,[1] the Full Federal Court reminds us of the proper procedure for review of a sequestration order made by a registrar. This case raises an important point about bankruptcy practice and procedure in the Federal Circuit Court and the Federal Court. Sometimes described as a ‘constitutional imperative’, a bankrupt is entitled to […]

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If you have a need for speed, don’t allow this to compromise the correct registration of your PPSR security interest

In Rohrt, in the matter of Rose Guerin and Partners Pty Ltd (in liq) v Princes Square W24NY Pty Ltd,[1] the Federal Court of Australia held that as BMW failed to correctly register their security interest in a 2017 Ferrari GTC4 Lusso (by registering against the ACN of a corporate trustee but not against the […]

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The Federal Court takes aim in Gunns – and extinguishes the Peak Indebtedness Rule in Australia

On 10 May 2021 in Badenoch Integrated Logging Pty Ltd v Bryant, in the matter of Gunns Limited (in liq)(receivers and managers apptd)[i]  the Full Court of the Federal Court of Australia abolished the application of the Peak Indebtedness Rule to a running account ‘single transaction’ under section 588FA(3) of the Corporations Act 2001 (Cth) […]

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