TGIF
TGIF is a weekly publication focusing on current issues in insolvency law and banking and finance litigation.
Liquidator’s examinations: gaining access to an affidavit in support
Under section 596B of the Corporations Act 2001 (Cth) (*Act*), liquidators and other eligible applicants can apply to the Court for orders to examine certain persons in connection with the affairs of a corporation. Under section 596C, the affidavit in support is not available for inspection unless a court otherwise orders.
Read MoreChoice Constructions Pty Ltd v Janceski [No 3] [2011] WASC 358
Unconscionable conduct – a reminder
Read MoreASIC secures High Court victory against James Hardie directors
Yesterday the High Court of Australia delivered its decision on an appeal brought by the Australian Securities and Investment Commission (*ASIC*) against 7 former non-executive directors (*Directors*) and the company secretary and general counsel (*Mr* *Shafron*) of James Hardie Industries Ltd (*JHIL*). The High Court allowed the appeal and held that the primary judge was correct in finding that the Directors and Mr Shafron breached their duties to JHIL in approving a misleading ASX announcement.
Read MoreAppointment of provisional liquidators – the need for an imminent threat to assets
On 7 December 2011, the Supreme Court of New South Wales (*Court*) delivered its decision in In the matter of Nugisi Pty Ltd [2011] NSWSC 1512, clarifying the circumstances in which courts will allow the appointment of a provisional liquidator.
Read MorePublic examinations conducted by receivers – constitutionally valid?
The recent case of Saraceni v Jones [2012] WASCA 59 has examined whether a court has the power under the Constitution to order public examinations pursuant to ss 596A and 597 of the Corporations Act 2001 (Cth) (*Act*) where a corporation is in receivership and/or its property is in the possession of a mortgagee.
Read MoreLiquidators and litigation funders – the production and confidentiality of documents
On 3 February 2012, the Federal Court of Australia delivered its decision in the case of ABC Learning Centres Limited (ABC), in the matter of ABC Learning Centres Limited; application by Walker (No.11) [2012] FCA 40 in relation to the production of documents by a banking syndicate to liquidators and a litigation funder pursuant to public examinations.
Read MoreValuing debts for the purposes of creditors’ voting powers
“I’ve never ever, in my entire business life, seen anything at this rate....My staff have done the calculation and they believe [the interest was] at the rate of 142 percent per annum”.
Read MoreUnfair preference transactions and payments to the ATO
The Federal Court's decision in Kassem and Secatore v Commissioner of Taxation [2012] FCA 152 clarifying when payments made to the Commissioner of Taxation in the six months prior to the winding up of the company will be unfair preferences.
Read MoreHow are employee entitlements to be paid when receivers and liquidators are appointed concurrently?
On 22 February 2012, the WA Supreme Court handed down its decision in Re Great Southern Ltd (Receivers and Managers Appointed) (in liq); Ex parte Thackray [2012] WASC 59.
Read MoreThe impact of bankruptcy on proceedings commenced by a person in his or her capacity as trustee
On 2 February 2012, the Western Australian Supreme Court gave its decision in Duckworth (as trustee for the Ocean Farm Trust) v Water Corporation [2012] WASC 30. The question the Court was asked to consider was whether s 60(2) of the Bankruptcy Act 1966 (Cth) (*Act*)* *operated to stay civil proceedings commenced by a person in their capacity as trustee in circumstances where that person had become bankrupt after the proceedings had been instituted.
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