Court decides Cant can’t recover payment from related company as unfair preference

In the recent decision of Cant v Mad Brothers Earthmoving,[1] the Court of Appeal of the Supreme Court of Victoria (Justices Beach, McLeish and Hargrave) considered whether the liquidator of Eliana Construction and Developing Group (in liquidation) (Eliana) could establish that a payment made to an unsecured creditor of Eliana by one of Eliana’s related companies was […]

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Search and seizure application warranted: Illegal phoenix activity

The recent Federal Court decision of Scott v Southern Highlands Waste & Recycling Pty Ltd[1] provides liquidators with important guidance regarding the availability of search and seizure warrants under section 530C of the Corporations Act 2001 (Cth) (the Corps Act). Whilst the provision remains a useful mechanism for liquidators dealing with uncooperative directors, the Court has made it clear that warrants […]

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Gunns ahoy: Federal Court reignites debate over the application of the peak indebtedness rule and set-off defence in unfair preference claims

In the recent Gunns decisions, the Federal Court considered three separate unfair preference claims brought by the liquidators of Gunns Limited (in Liquidation) (Gunns) against: Badenoch Integrated Logging Pty Ltd (Badenoch);[1] Bluewood Industries Pty Ltd (Bluewood);[2] and Edenborn Pty Ltd (Edenborn).[3] Badenoch, Bluewood and Edenborn each received significant sums from Gunns during the relation-back period and evidence available […]

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Webinar | The Butterfly Effect – insolvency, class actions and government

Challenging economic times inevitably lead to increased litigation, from which government is not immune whether in the enforcement of powers or contracts or in the defence of ambit claims. This session examines recent changes in the current environment, exacerbated by COVID-19 challenges to the content of laws and the practical administration of justice and the […]

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NSW Court of Appeal casts a shadow over voting rights

Whilst the power of a chairperson to exercise a casting vote at creditors’ meetings is a useful mechanism to resolve a deadlock in voting, it does not confer unconstrained discretion. The recent Glenfyne Appeal[1] provides valuable guidance as to the appropriate exercise of a casting vote and also serves as a reminder of the Court’s […]

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Litigation funders’ new regulatory requirements – practical issues and the impact on class actions

Changing times The Federal Treasurer has announced that all litigation funders will soon be required to hold an Australian Financial Services Licence (AFSL), which will dramatically increase the Australian Securities and Investments Commission’s (ASIC) regulatory oversight over those funders who do not already hold an AFSL. The announcement follows the Federal Attorney General’s referral to […]

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Why courts from different jurisdictions are sitting together: Australia’s experimentation with joint hearings

Australian courts regularly cooperate with courts of different jurisdictions, both domestically and internationally. We see this, for example, when courts transfer proceedings to different jurisdictions, or stay proceedings to allow the continuation of proceedings in different jurisdictions. In recent times we have also seen the rise of a more direct form of judicial cooperation: joint […]

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Anti-phoenixing legislation finally passes through Parliament

After having been introduced to the Commonwealth Parliament on 13 February 2019, then re-introduced on 4 July 2019, the Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019 finally passed through both Houses on 5 February 2020. As its name suggests, the Bill introduces a number of new measures aimed at combating illegal phoenix activity in Australia. Illegal […]

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To carry out no or little investigation and to say nothing is not an option – a warning to insolvency practitioners

The Federal Court has issued a warning to insolvency practitioners, involved in voluntary administrations, to ensure adequate investigation and reporting occurs of matters that have the potential to materially affect the outcome of the administration. In Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject  to Deed […]

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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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Marshalling – what is it and how can it help a second registered mortgagee?

Marshalling is an equitable doctrine designed to protect second registered mortgagees from not being paid because of the arbitrary or capricious realisation of a security property by a prior mortgagee. In certain circumstances, a second registered mortgagee may be able to access surplus proceeds of sale from a property which it did not hold a mortgage […]

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When privileged documents are stolen and disseminated: an analysis of the High Court’s decision in Glencore

In Glencore International AG v Commissioner of Taxation [2019] HCA 26, the High Court considered whether Glencore could restrain the Commissioner of Taxation from making use of certain privileged documents.  Interestingly, the privileged documents in question were stolen as part of a cyberattack from Glencore’s solicitors and disseminated amongst the “Paradise Papers”.   Background Solicitors acting for the […]

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