Setting aside a Statutory Demand – a low threshold?

In Project 88 TPF Pty Ltd v Open Projects Group Pty Ltd[1] Project 88 Pty Ltd (Project 88) fell behind on payments to Open Projects Group (OPG) under a commercial building contract for the fit out of a nightclub, the Pink Flamingo Spiegelclub on the Gold Coast. OPG effectively sought to enforce a compromise agreement […]

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Appointed too late – company fails to avoid liquidation

Section 440A(2) of the Corporations Act 2001 (Cth) (the Act) requires the Court to adjourn a winding up application if it is satisfied that it would be in the best interest of creditors for the company to continue under administration rather than be wound up. In the matter of Integrated Green Energy Solutions Ltd (administrators […]

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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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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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Ulterior motives and personal interests lead to setting aside of Public Examination Order

In ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton & anor,[1] the New South Wales Court of Appeal considered the purpose for which public examination summons and production of documents can be ordered. Drawing on authorities that the predominant purpose of a public examination should be for the benefit […]

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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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