The Federal Court demonstrates the flexibility and breadth of orders under section 90-15 of the Insolvency Practice Schedule in a voluntary administration

In Krejci, in the matter of Union Standard International Group Pty Ltd,[1] the Federal Court provides an example of the ways in which section 90-15 of the Insolvency Practice Schedule[2] (IPS) can be used to craft orders that balance the interests of the company, creditors and third parties. Background The applicants were the voluntary administrators […]

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Re Cullen Group: When not contesting an application and agreeing to abide an order of the court can be… costly

In Re Cullen Group,[1] the Supreme Court of Queensland considered the determination of a preliminary question regarding the insolvency of Cullen Group Australia Pty Ltd (Cullen Group), which was placed into liquidation approximately four years prior to the hearing date. The issue of insolvency was relatively uncontroversial and, as noted by Justice Martin, “was not […]

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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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