Queensland Court of Appeal rejects ‘IOU’ as payment for debt

In Bayly v Westpac Banking Corporation[1], the Queensland Court of Appeal dismissed an appeal against a summary judgment granted in favour of Westpac Banking Corporation (Westpac). Whilst there were broadly, two grounds of appeal, the appellant was self-represented and raised numerous issues and alleged errors of law and fact made by the primary Judge. The […]

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Travelling / moving overseas while bankrupt

In Moltoni v Macks as Trustee of the Bankrupt Estate of Moltoni (no 2) [1] the Federal Court of Australia considered a bankrupt’s application for review of the Bankruptcy Trustee’s decision not to allow him to leave Australia and live in the UK. Although there were doubts about the bankrupt’s assistance to date with the Trustee’s investigations, […]

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Changes to Mortgagee Power of Sale process in Queensland: is a vesting order still needed when a property is disclaimed by a Trustee in Bankruptcy or Liquidator?

Gadens has had involvement in numerous matters where land, the subject of a registered mortgage, is disclaimed by a Trustee in Bankruptcy or Liquidator. Recent changes to the Property Law Act 1974 (Qld) (Act) have simplified the process for mortgagees exercising power of sale and do away with the need for a Court order. Previously, […]

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Lender’s claim for negligent valuation – ensure you seek damages in time

In the recent case of Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Ltd (No 2)[1], the New South Wales Court of Appeal considered a claim for pure economic loss allegedly arising out of a valuation report provided for mortgage valuation purposes. The separate question referred to the Court for determination was whether, for the […]

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Liquidation does not automatically remove a corporate trustee – Court directions may be required

In KSK Holdings (Australia) Pty Ltd (in liquidation) [2019] NSWSC 1463 a liquidator sought directions from the Supreme Court of New South Wales under section 90-15(1) of the Insolvency Practice Schedule (Corporations) at Schedule 2 of the Corporations Act 2001 (Cth). The liquidator sought clarity as to whether KSK Holdings (Australia) Pty Ltd (in liquidation) (KSK Holdings) remained trustee […]

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Lender’s minor omissions have major impact in summary judgment application

In Secure Funding v West [2017] QDC 169, the District Court of Queensland provides a helpful reminder of the importance of complying with contractual and legislative notice requirements.  As this case demonstrates, it is important for lenders to be able to demonstrate service of default notices so as to avoid minor omissions which can be costly.   […]

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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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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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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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