Liquidators Be Aware – Statutory Demands and Personal Liability for Costs

In SJG Developments Pty Ltd v NT Two Nominees Pty Ltd (in liq),[1] the Supreme Court of Queensland set aside a statutory demand served by the liquidators of NT Two Nominees Pty Ltd (in liquidation) (NT Two Nominees) on SJG Developments Pty Ltd (SJG).  Costs were awarded on the indemnity basis and more significantly, were also ordered […]

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How ASIC’s new product intervention power may be used in the future – looking overseas for clues

In this briefing, we provide an overview of the Australian PIP regime, compare it to overseas regimes and list some of the products which have been banned in Australia and under comparable regimes overseas. This briefing offers an insight into the types of products that ASIC may intervene on in the next few years. Download […]

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Changes to Mortgagee Power of Sale process in Queensland: is a vesting order still needed when a property is disclaimed by a Trustee in Bankruptcy or Liquidator?

Gadens has had involvement in numerous matters where land, the subject of a registered mortgage, is disclaimed by a Trustee in Bankruptcy or Liquidator. Recent changes to the Property Law Act 1974 (Qld) (Act) have simplified the process for mortgagees exercising power of sale and do away with the need for a Court order. Previously, […]

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By whose authority? Court deems payments made under a DOCA to the DCT voidable as unfair preferences

In Yeo, in the matter of Ready Kit Cabinets Pty Ltd (in liq) v Deputy Commissioner of Taxation,[1] the Court considered whether payments made to the Deputy Commission of Taxation (DCT) by a director of the company, required under a Deed of Company Arrangement (DOCA) were recoverable as unfair preferences. The case turned on whether the payments […]

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Gadens Connect | 2020 Edition Three

In the third edition of Gadens Connect, we bring you the second quarter update for 2020. These last few months have seen us all adjusting to a new ‘norm’ and the challenges the COVID-19 pandemic has continued to bring to business and life in Australia. In this edition, we focus heavily on the impact of […]

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Can a “Gentleman’s Agreement” not to enforce a guarantee be relied upon?

In Harburg Nominees Pty Ltd & Anor v Deen,[1] the Supreme Court of Queensland considered whether an oral “gentleman’s agreement”, that is the oral representations made, meant that the guarantees were unenforceable. The facts As at May 2015, Harburg Nominees Pty Ltd (Harburg) had, over time, advanced approximately $18.5 million to Warapar Resources Pty Ltd (Warapar) for […]

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“Legal Phoenix” – The burdens and benefits of professional advice

In ACN 093 117 232 Pty Ltd (In Liq) v Intelara Engineering Consultants Pty Ltd (In Liq) [2019] FCA 1489, the court considered whether a “legal phoenix” arrangement entered into after receiving professional advice was in fact a voidable transaction. The facts Intelara Pty Ltd (OldCo) operated an engineering consultancy business and after experiencing financial difficulties in […]

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Gadens Connect | 2020 Edition Two

Welcome to the second edition of Gadens Connect, and our first quarter update of 2020. This year has seen many challenges for lenders, from bushfires to the more recent COVID-19 pandemic. We know you have been working hard to support thousands of affected customers and we are here to work with you, and support your […]

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COVID-19 | Verification of identity – the need to go digital

All of the states (but not the territories) require mortgagees to undertake reasonable steps to verify the identities of mortgagors, commonly through a framework called the “Verification of Identity Standard” (VOI Standard) undertaken by specialised “Identity Agents” e.g. lawyers or other agents with professional indemnity insurance. Where they do not, and the mortgage instrument is […]

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Responding to a subpoena – is it always necessary to lay everything bare?

In Harvard Nominees Pty Ltd v Tiller,[1] the Federal Court of Australia was tasked with considering the grounds on which a subpoena to produce may be set aside.  Interestingly, the subpoenas in question were made for third parties (which were related to the respondents) to produce financial records and other documents to the Court in the context […]

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Gadens Connect | 2020 Edition One

Welcome to Gadens Connect – a newsletter to share insights, trends and opportunities for our clients in the financial services industry. In this edition we share some key performance insights from 2019 and provide an overview of topics including updates to our GPSR platform (automation and integration solutions), MIP sale obligations and updates to the […]

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Responsible lending – updated guidance and practical considerations

Lenders’ responsible lending obligations have been a fluid topic in the wake of the Hayne Royal Commission’s final report in February 2019. In that report, Commissioner Hayne said that he was ultimately not persuaded that the National Consumer Credit Protection Act 2009 (Cth) (NCCP) needed to change in that aspect. His view was that the […]

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