The Court’s willingness to extend the convening period for a meeting of creditors where the administration is large and complex

In Algeri, in the matter of WBHO Australia Pty Ltd (Administrators Appointed) [2022] FCA 169, the Federal Court heard the second application by the administrators who were seeking an extension to the convening period for the second meeting of creditors, which pursuant to section 439A(5) of the Corporations Act 2001 (Cth) (the Act) was set […]

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Federal Court’s refusal to grant leave to amend pleadings

On 11 February 2022 in Canavan v ICRA Rolleston Pty Ltd (Receivers and Managers Appointed)(in liquidation) [2022] FCA 117 the Federal Court of Australia refused to permit the Plaintiff to amend his points of claim less than two weeks before trial. In considering the legal principles and matters relevant to the exercise of the court’s […]

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Setting off on the wrong foot: creditors are now unable to rely on statutory set-off to defend an unfair preference claim by a liquidator

In a special question reserved for consideration, the Full Federal Court considered whether statutory set-off under s 553C(1) of the Corporations Act 2001 (Cth) (the Act) was available to defend against a liquidator’s claim to recover an unfair preference under s 588FA of the Act. The unanimous and somewhat emphatic answer to this question delivered […]

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NSW Supreme Court provides guidance on the procedural requirements for disputes determined by AFCA

The case of Australian Capital Financial Management Pty Limited v Australian Financial Complaints Authority Limited (2021) NSWFC 1577 concerned an application made by Australian Capital Financial Management Pty Ltd seeking to have the Court set aside a previous determination made by AFCA. Background In 2014, Mr Bai, Ms Yang and Mr Lee established Australian Sheepskin […]

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Is it Just? Federal Court of Australia considers whether to reinstate a deregistered company and whether the deregistration itself prevented the proposed plaintiff from filing within the limitations period

In deciding whether to reinstate a deregistered company (and suspend a limitation period to allow the company to commence proceedings), the primary question for the court is whether it is just to do so. In the recent decision of the Federal Court in Price, in the matter of Advanced Polymer Recycling Pty Ltd v Australian […]

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An administrator’s right to remuneration out of trust property

In Australian Securities and Investments Commission v Marco (no 9) [2021] FCA 1306 the Administrators brought an interlocutory application seeking remuneration orders pursuant to section 60-10(1)(c) of the Insolvency Practice Schedule (IPSC) for the administration of the second defendant. The application was opposed by the Liquidators of the second defendant. Justice McKerracher ultimately held that […]

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Group costs orders – The way of the future?

The Victorian Supreme Court’s decision in Fox v Westpac Banking Corporation; Crawford v Australia and New Zealand Banking Group Limited[1] was the first determination of an application seeking a group costs order in Australia. Whilst the Plaintiffs’ applications were ultimately unsuccessful, the Court decided to adjourn the applications (rather than dismiss them altogether) in order […]

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Gazing into the crystal ball – when assessing whether a company is insolvent, how far into the future should the Court look?

In Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2),[1] the NSW Supreme Court handed down judgment in two proceedings (which were heard together) arising from the failure of Arrium and its broader corporate group.[2] Of particular interest to insolvency practitioners, the Court was asked to […]

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Liquidators beware: pitfalls in admitting proofs of debt

The Federal Court’s decision in Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq)[1] concerns an interlocutory application made by a creditor to review the liquidator’s decision to admit a proof of debt. Background The proof of debt was lodged by Fishbank Development Corporation Pty Ltd (FDC) in the amount of $56,289.43, […]

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What did the Federal Court say when it recently considered joint legal professional privilege?

In Kayler-Thomson v Colonial First State Investments Limited (No 2),[1] the Federal Court considered the issue of joint legal professional privilege and confirmed that it can only be waived by the actions of all holders of the privilege. Background Mr Keith Kayler-Thomson (Mr Kayler-Thomson) was an applicant in representative proceedings brought against Colonial First State […]

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Federal Court approves administrators’ entry into funding deed to trade company pending sale

Section 90-15 of the Insolvency Practice Schedule (the IPS) confers on Courts wide powers to adjust rights related to companies in external administration. Here, the administrators of a mining group obtained orders approving their entry into a deed to fund the ongoing operation of the group pending sale and limiting their liability under the deed […]

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Drawing Inferences – the extent that evidence can be inferred

In Ross, in the matter of Print Mail Logistics (International) Pty Ltd (in liq) v Elias,[1] the Federal Court considered the extent to which a Jones v Dunkel[2] inference can be made. There were three factual issues to be determined by the Court and both parties relied heavily on inferences to prove their case. Ultimately, […]

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