Update on unfair preferences and statutory set-off

One of a liquidator’s most powerful tools is the ability to seek to recover unfair preferences from creditors for the purposes of increasing the pool of assets available to creditors generally. Proceedings to recover unfair preferences can be costly and it is imperative that a liquidator assess not only the evidence available to prove the […]

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Unfair preferences and insolvent transactions – ‘knowledge’ of insolvency and the good faith defence

In Stimpson v Commissioner of State Revenue [2018] QDC 140, the District Court of Queensland considers the statutory defence under the Corporations Act 2001 (the Act) to preference or insolvent transaction proceedings. Underlying the decision is the impact increasingly automated processes may have on well-established legal principles regarding evidence of ‘knowledge’ and ‘belief’. This contributed […]

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Is a new postal rule coming?

On 12 September 2018, the Commonwealth Senate passed the Civil Law and Justice Legislation Amendment Bill 2018 (Cth). This Bill proposes to amend section 160 of the Evidence Act 1995 (Cth).  This section contains the general rule by which a postal article sent by prepaid post is presumed to be received by the recipient on […]

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Ipso facto reforms – what exceptions apply?

From 1 July 2018, new provisions introduced into the Corporations Act 2001 (Cth) (CA 2001) by the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), impose a stay on the enforcement of ipso facto clauses against a company that becomes subject to certain prescribed insolvency events. Importantly, the changes only apply to […]

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Ipso Facto Reforms

On 1 July 2018, the Australian Government’s ipso facto reforms (the Reforms) came into effect.[1] Rather than prohibiting the inclusion of ipso facto clauses, the Reforms impose statutory limitations on the enforcement of certain rights found in contracts, agreements or arrangements. It is crucial that government and government agencies understand these Reforms and take them […]

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Amerind – insolvent corporate trustees and the Corporations Act 2001 priority regime – still a grey area

The Victorian Court of Appeal in Amerind[1] considered whether the right of indemnity from trust assets held by an insolvent trustee company is ‘property of the company’. If so, the Court considered whether the statutory scheme of priority contained in the Corporations Act 2001 (Cth) (Corporations Act) applies to the distribution of the relevant property. […]

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Freezing orders – a refresher

What is a freezing order? Previously known as a Mareva order, a freezing order is an interlocutory order restraining a person or corporation from removing any assets located in or outside Australia or from disposing of, dealing with or diminishing the value of, those assets. What is the purpose of a freezing order? The purpose […]

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