The risks of discontinuing: a look at the High Court’s decision in UBS v Tyne

The recent High Court decision of UBS v Tyne [2018] HCA 45 concerned circumstances where an original trustee of a trust discontinued proceedings in the Supreme Court of New South Wales, then almost 2 years later a subsequently-appointed trustee of the same trust commenced fresh proceedings in the Federal Court raising, in substance, the same claims against […]

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Borrowers punished for behaving unconscionably in taking advantage of a lender’s mistake

The New South Wales Supreme Court decision of Citigroup v Wernhard [2019] NSWSC 132 considers whether certain conduct by the borrowers was unconscionable (as against a lender). Borrowers sold one of three properties that was held as security for loans to them, but the lender mistakenly released mortgages over all three. The borrowers noticed the mistake, subsequently sold […]

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Mere assertion is not enough: The Federal Court provides a reminder of the evidence required to set aside a creditor’s statutory demand for genuine dispute

In Aussie Hoist Property Pty Ltd v Mulqueen [2018] FCA 1493, the Federal Court has given a timely reminder that a company receiving a creditor’s statutory demand (Stat Demand) cannot have that Stat Demand set aside on the basis of genuine dispute as to the existence or amount of the relevant debt merely by asserting […]

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Pleash (Liquidator) v Tucker and the production of documents in public examinations: whether trust assets are ‘Examinable Affairs’

In Pleash (Liquidator) v Tucker,[1] the Federal Court makes clear that the scope of ‘examinable affairs’ in public examinations pursuant to section 597(9) of the Corporations Act 2001 (Cth) (the Act) does not extend to assets that are only potentially available to a prospective defendant. For example, this includes a beneficiary’s interest in the assets […]

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When a trading trust goes bust: the aftermath of the Killarnee decision

Many modern businesses are carried on through a “trading trust”, with a private company serving as trustee. However, while this type of arrangement is not uncommon, there is still a great deal of uncertainty about correct protocol when a corporate trustee becomes insolvent. Questions arise such as: What happens with the corporate trustee is wound […]

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The first reported foreclosure in Queensland for 35 years – an innovative litigation solution

In June 2018, we assisted one of our government clients to achieve an innovative solution that delivered benefit for both the agency and its defaulting borrower whose security property was in significant negative equity – the first reported foreclosure in Queensland since 1981. The result provided the agency with protection, control and costs savings, and […]

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