TGIF is a weekly publication focusing on current issues in insolvency law and banking and finance litigation.

The Code of Banking Practice and guarantees: are you a diligent and prudent banker?

18 December 2015

This week’s TGIF considers whether banks owe guarantors a duty to exercise the care and skill of a diligent and prudent banker in selecting and applying their credit assessment methods and forming an opinion about a customer’s ability to repay.

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Pay back - deed administrator may need to pay back remuneration to satisfy costs orders

11 December 2015

This week’s TGIF considers a decision in which the Court held that an administrator who has unsuccessfully defended a proceeding may need to reinstate any remuneration previously received to satisfy the resultant costs order.

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Application of the Code of Banking Practice to corporate guarantors

4 December 2015

The Supreme Court of Western Australia has confirmed a corporate guarantor cannot rely on a breach of the Code of Banking Practice and that more than adoption of the Code by the financier is required to incorporate it as a contractual term.

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Litigation funding to commence proceedings – will recovery of costs and expenses be enough?

27 November 2015

Marsden v Screenmasters Australia provides guidance to liquidators who commence and continue proceedings, pursuant to funding arrangements, when met with arguments that the proceedings will not confer a benefit to creditors.

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Court rejects guarantor’s defence and supports Receiver’s sale process in section 420A case

20 November 2015

The recent NSW Supreme Court decision of Westpac Bank v Raflick Sayah provides comfort to banks and their receivers in that it validates the actions of a Receiver who had obtained expert advice on the sale process and had undertaken a thorough proce

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Queensland Court of Appeal denies wife relief from guarantee

13 November 2015

The Supreme Court of Queensland considers the wife’s equity principle in respect of a wife guaranteeing a husband’s loan, but upholds her obligation to pay.

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Painting the directors red

6 November 2015

This week’s TGIF considers a decision in which the court examined whether payments made by a company to a creditor of the directors constituted unreasonable director-related transactions.

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When can a guarantor rely on a right of subrogation?

30 October 2015

This week’s TGIF considers the case of Bowesco Pty Ltd v Westpoint Management Ltd [2015] WASCA 184, which considered whether a guarantor had a right of subrogation enabling it to be repaid in advance of the second ranking creditor.

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Interpreting commercial contracts using surrounding circumstances: Do you need ambiguity?

23 October 2015

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 emphasises that parties need to be aware when negotiating contracts that circumstances surrounding the contract may be used to interpret it later.

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Liquidator seeks court direction where risk of legal controversy

16 October 2015

This week’s TGIF reinforces that the Court’s reluctance to give directions to a liquidator in respect of commercial matters is qualified in respect of matters which are capable of giving rise to a legal controversy.

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