http://www.corrs.com.au/publications/tgif/ Publications from www.corrs.com.au http://www.corrs.com.au/publications/tgif/asic-national-insolvent-trading-program-report-and-asic-duty-to-prevent-insolvent-trading-guide-for-directors/ In the last six months ASIC has released the *National insolvent trading program report*[http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rep213.pdf/$file/rep213.pdf] and the *Duty to prevent insolvent trading: Guide for directors*[http://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg217-29July2010.pdf/$file/rg217-29July2010.pdf] Fri, 12 Nov 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/asic-national-insolvent-trading-program-report-and-asic-duty-to-prevent-insolvent-trading-guide-for-directors/ http://www.corrs.com.au/publications/tgif/administrators-application-to-the-court-for-directions/ In the case of Killer, in the Matter of North Coast Panels Pty Ltd (Administrators Appointed) [2011] FCA 776, administrators successfully sought directions from the Court pursuant to s 447D of the Corporations Act 2001 (Cth) (*Act*) confirming their decision to enter into a contract for the sale of North Coast Panels Pty Ltd (*Company*). Fri, 22 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/administrators-application-to-the-court-for-directions/ http://www.corrs.com.au/publications/tgif/an-automatic-right-to-an-adjournment-for-new-lawyers/ The courts will often grant adjournments where a litigant has engaged new lawyers. Nonetheless, the NSW Supreme Court in the case of Kingsway Group Ltd v Belramoul [2009] NSWSC 345 recently refused an application to adjourn a hearing made by a litigant who had briefed their barrister only the day before. Fri, 22 May 2009 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/an-automatic-right-to-an-adjournment-for-new-lawyers/ http://www.corrs.com.au/publications/tgif/an-overview-of-the-personal-property-securities-act-2009/ On 14 December 2009, the Personal Property Securities Act 2009 (the Act) together with the Personal Property Securities (Consequential Amendments) Act 2009 received Royal Assent. They are expected to commence in May 2011. To date legislation for the referral of relevant powers to the Commonwealth has been passed by four states: NSW, Queensland, Victoria and South Australia. Fri, 19 Feb 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/an-overview-of-the-personal-property-securities-act-2009/ http://www.corrs.com.au/publications/tgif/application-for-declarations-recognising-a-foreign-courts-orders-/ In the recent case of Re Chow Cho Poon (Private) Ltd [2011] NSWSC 300, the Supreme Court of NSW made ex parte declarations recognising the orders of the High Court of the Republic of Singapore and authorising a foreign liquidator to deal with certain property of the company located in Australia to extent he was permitted to do so by the law of Singapore. Fri, 06 May 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/application-for-declarations-recognising-a-foreign-courts-orders-/ http://www.corrs.com.au/publications/tgif/appointment-of-administrators-by-secured-creditors-and-directors-and-the-subsequent-application-of-s-447a/ The recent case Re Australian Property Custodian Holdings Ltd (Administrators Appointed) (Receivers and Managers appointed) [2010] VSC 492 provides clarification as to the appointment of administrators by secured creditors under s 436C of the Corporations Act 2001 (*Act*) and the application of s 447A of the Act to validate a defective appointment of an administrator. Fri, 15 Apr 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/appointment-of-administrators-by-secured-creditors-and-directors-and-the-subsequent-application-of-s-447a/ http://www.corrs.com.au/publications/tgif/bare-trustees-entitlement-indemnified-trust-property/ Last week, we reported on the powers of bare trustees in a winding up.[http://www.corrs.com.au/thinking/publications/limited-powers-of-a-bare-trustee-to-deal-with-trust-assets/] This week, we report on the recent case of Bruton Holdings Pty Limited (In Liq) v Commissioner of Taxation [2011) FCAFC 79 in which the Full Federal Court considered whether a bare trustee was entitled to indemnification out of trust property for the costs of undertaking litigation in order to protect the trust property. Fri, 05 Aug 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/bare-trustees-entitlement-indemnified-trust-property/ http://www.corrs.com.au/publications/tgif/can-liquidators-enter-into-funding-agreements/ In the decision of Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89, the Federal Court of Australia considered the powers of liquidators under the Corporations Act 2001 (Cth) (*Act*) to enter into and perform their obligations under funding agreements. Fri, 26 Aug 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/can-liquidators-enter-into-funding-agreements/ http://www.corrs.com.au/publications/tgif/claims-by-shareholders-in-an-insolvency-statutory-reversal-of-sons-of-gwalia/ Insolvency practitioners and litigators should note the recent amendments to section 563A of the Corporations Act. The Corporations Amendment (Sons of Gwalia) Act 2010 (*Sons of Gwalia Act*) came into effect on 18 December 2010, legislating to ensure that all claims by shareholders of an insolvent company are subordinated to those of other creditors. Fri, 11 Mar 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/claims-by-shareholders-in-an-insolvency-statutory-reversal-of-sons-of-gwalia/ http://www.corrs.com.au/publications/tgif/default-notices-substantive-rather-than-formal-compliance/ The recent case of Perpetual Trustees Victoria Limited v Monas [2011] NSWSC 57 confirms that a default notice served by a creditor under section 80 of the then applicable Consumer Credit Code (the *CCC*) is valid as long as the notice substantively complies with the requirements of section 80. This was despite strict compliance arguably not having been achieved. Fri, 01 Apr 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/default-notices-substantive-rather-than-formal-compliance/ http://www.corrs.com.au/publications/tgif/developer-update-changes-to-laws-affecting-off-the-plan-contracts/ We reported last year that the Victorian Parliament was considering proposed changes to the Sale of Land Act 1962 (Vic.) (*Sale of Land Act*) concerning off-the-plan contracts of sale as part of a second phase of reforms flowing from the Consumer Affairs Legislation Modernisation project. The Consumer Affairs Legislation Amendment (Reform) Act 2010 (Vic) (*Act*) received royal assent on 28 September 2010, and the majority of the proposed changes will soon be law. Tue, 12 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/developer-update-changes-to-laws-affecting-off-the-plan-contracts/ http://www.corrs.com.au/publications/tgif/directions-sought-by-a-controller-under-section-424/ Last month, the Federal Court published its reasons in Re Primebroker Securities Ltd (Receivers and Managers) (In Liquidation) [2011] FCA 86. Fri, 04 Mar 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/directions-sought-by-a-controller-under-section-424/ http://www.corrs.com.au/publications/tgif/director-denied-access-to-documents-of-company-in-receivership/ In the recent case of Oswal v Burrup Holdings Limited [2011] FCA 609, a director of a company in receivership was denied access to documents relating to the potential or actual sale of assets or shares of the company, some of which were available to the director by other means. The director’s application for access was made pursuant to both the Corporations Act 2001 (Cth) (*Act*) and the common law. Fri, 01 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/director-denied-access-to-documents-of-company-in-receivership/ http://www.corrs.com.au/publications/tgif/extensions-of-time-limits-for-scheduling-creditors-meetings/ In the recent Federal Court case of Duncan, in the matter of Megafert Pty Ltd (Administrators Appointed) [2011] FCA 785  the administrators sought to extend the time within which to hold a second meeting of creditors on the basis that further investigations were necessary before an accurate report about the company could be provided.  Fri, 12 Aug 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/extensions-of-time-limits-for-scheduling-creditors-meetings/ http://www.corrs.com.au/publications/tgif/finalisation-of-pps-regulations/ The new Personal Property Securities Regulations 2010 (Cth) were enacted late last month. Fri, 17 Dec 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/finalisation-of-pps-regulations/ http://www.corrs.com.au/publications/tgif/limited-powers-of-a-bare-trustee-to-deal-with-trust-assets/ In the recent case of Caterpillar Financial Australia Ltd v Ovens Nominees Pty Ltd [2011] FCA 677, the Federal Court of Australia considered the law relating to the duties, powers and rights of a bare trustee in a winding up. Fri, 29 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/limited-powers-of-a-bare-trustee-to-deal-with-trust-assets/ http://www.corrs.com.au/publications/tgif/limiting-liability-with-liquidated-damages-clauses-jcorp-pty-ltd-v-mladenis-2009-wasca-157/ Building and construction contracts often include a clause providing for the proprietor to be paid an agreed rate of liquidated damages in the event the contractor fails to meet milestones by the time prescribed by the contract. To be enforceable, the liquidated damages must represent a genuine pre-estimate of a proprietor’s loss. Liquidated damages clauses are normally included for the proprietor’s benefit. Thu, 28 Jan 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/limiting-liability-with-liquidated-damages-clauses-jcorp-pty-ltd-v-mladenis-2009-wasca-157/ http://www.corrs.com.au/publications/tgif/nolan-revisited-the-mortgagees-power-of-sale-against-the-mortgagors-home-clarified/ In 2010, we reported on Perpetual Trustee Ltd v Baranov [2010] VSC 18, which was distinguished both at first instance and on appeal from Nolan v MBF Investments Pty Ltd [2009] VSC 244. In Nolan, MBF Investments appealed the decision of Vickery J. Fri, 29 Apr 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/nolan-revisited-the-mortgagees-power-of-sale-against-the-mortgagors-home-clarified/ http://www.corrs.com.au/publications/tgif/octaviar-the-queensland-court-of-appeals-decision-affirmed-in-the-high-court/ Earlier this week, the High Court handed down its decision in Public Trustee of Queensland v Fortis Credit Corporation (AUS) Pty Ltd [2010] HCA 29, unanimously upholding the decision of the Queensland Court of Appeal and ending confusion in relation to the circumstances that constitute a variation to a charge. Fri, 03 Sep 2010 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/octaviar-the-queensland-court-of-appeals-decision-affirmed-in-the-high-court/ http://www.corrs.com.au/publications/tgif/pitfalls-for-lenders-when-taking-personal-guarantees-from-spouses/ The recent decision of the Queensland Court of Appeal in Agripay Pty Ltd v Byrne [2011] QCA 85 is a timely reminder to lenders when taking a personal guarantee from a borrower’s spouse to ensure that the nature and effect of the guarantee and the risks involved are explained to the guarantor. Fri, 15 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/pitfalls-for-lenders-when-taking-personal-guarantees-from-spouses/ http://www.corrs.com.au/publications/tgif/preappointment-advice-and-the-independence-of-administrators-when-is-too-close-for-comfort/ The case of Huxtable, in the matter of Calnan Oldfield Pty Ltd (ACN 120 195 833) (Administrator Appointed) [2010] FCA 769 outlines the issues surrounding the appointment of an insolvency practitioner as an administrator of a company where the practitioner previously provided advice to the company. Fri, 10 Dec 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/preappointment-advice-and-the-independence-of-administrators-when-is-too-close-for-comfort/ http://www.corrs.com.au/publications/tgif/problematic-to-presume-issues-with-reliance-on-the-statutory-presumption-of-insolvency/ In the recent case of Fisher v Divine Homes Pty Ltd; Allen v Harb [2011] NSWSC 8, a liquidator was unable to rely on the presumption of insolvency in 588E(4) of the Corporations Act 2001 (Cth) (the *Act*) and ultimately fail to make out a voidable transaction claim Fri, 25 Mar 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/problematic-to-presume-issues-with-reliance-on-the-statutory-presumption-of-insolvency/ http://www.corrs.com.au/publications/tgif/recommendations-of-the-senate-inquiry-into-the-insolvency-industry/ This week the Australian Senate’s Economic References Committee (*the Committee*) has tabled a report on its inquiry into the *regulation, registration and remuneration of insolvency practitioners in Australia*[http://www.aph.gov.au/hansard/senate/commttee/S13196.pdf]. The report recommends a number of changes for the way the insolvency industry in Australia is regulated and controlled. Fri, 17 Sep 2010 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/recommendations-of-the-senate-inquiry-into-the-insolvency-industry/ http://www.corrs.com.au/publications/tgif/regulatory-update-the-future-of-financial-advice-beyond-ripoll/ The Federal Government yesterday announced its response to the Ripoll Inquiry into Financial Products and Services in Australia. Tue, 27 Apr 2010 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/regulatory-update-the-future-of-financial-advice-beyond-ripoll/ http://www.corrs.com.au/publications/tgif/relief-against-forfeiture-when-is-it-available/ http://113.192.22.178/admin#Root_Behaviour Fri, 26 Feb 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/relief-against-forfeiture-when-is-it-available/ http://www.corrs.com.au/publications/tgif/removal-of-caveat-lodged-by-registered-proprietor-to-prevent-exercise-of-mortgagees-power-of-sale-/ The recent case of Capital Finance Australia Limited v Bayblu Holding Pty Ltd & JNW Investments Pty Ltd [2011] NSWSC 24 discusses the discretionary considerations relevant to removing a caveat lodged by the owner of the land in an attempt to prevent a mortgagee from exercising its power of sale. Thu, 21 Apr 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/removal-of-caveat-lodged-by-registered-proprietor-to-prevent-exercise-of-mortgagees-power-of-sale-/ http://www.corrs.com.au/publications/tgif/restrictions-on-enforcing-guarantees-provided-by-directors-of-companies-in-administration/ The recent Queensland Supreme Court case of Bank of Western Australia Ltd v Clift [2010] QSC 366 indicates that the protection provided by section 440J of the Corporations Act to company directors, their spouses or relatives from claims during a company administration in relation to guarantees, may not be as absolute as previously thought. Fri, 25 Feb 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/restrictions-on-enforcing-guarantees-provided-by-directors-of-companies-in-administration/ http://www.corrs.com.au/publications/tgif/roadshow-films-v-iinet-isp-not-liable-for-authorising-copyright-infringement/ On 4 February 2010, Justice Cowdroy delivered the Federal Court’s decision in Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] FCA 24 (Roadshow v iiNet[http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html]). This important case concerns the liability of an internet service provider (*ISP*) for online copyright infringement by its subscribers. The Court held that iiNet Limited (*iiNet*), an ISP, was not liable for ‘authorising’ such copyright infringement. Tue, 09 Feb 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/roadshow-films-v-iinet-isp-not-liable-for-authorising-copyright-infringement/ http://www.corrs.com.au/publications/tgif/sons-of-gwalia/ The Sons of Gwalia case has received much publicity. Here is our brief summary of the essential issues. Fri, 16 Mar 2007 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/sons-of-gwalia/ http://www.corrs.com.au/publications/tgif/state-environmental-planning-policy-urban-renewal-2010/ On 15 December 2010, the State Environmental Planning Policy (Urban Renewal) 2010 (Urban Renewal SEPP) commenced. The Urban Renewal SEPP plays an important role in implementing the Metropolitan Plan for Sydney 2036, which will require 70% of population growth in existing areas, necessitating the renewal of existing urban areas. Thu, 28 Apr 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/state-environmental-planning-policy-urban-renewal-2010/ http://www.corrs.com.au/publications/tgif/statutory-demands-and-defects-in-affidavits/ In the recent decision of CCH Workflow Solutions Pty Ltd v E Discovery Australia Pty Ltd [2011] FCA 994 the Federal Court considered whether the presumption of insolvency due to non-compliance with a statutory demand arose where the affidavit accompanying the statutory demand in question was witnessed by a person who was not a registered Justice of the Peace. Fri, 09 Sep 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/statutory-demands-and-defects-in-affidavits/ http://www.corrs.com.au/publications/tgif/statutory-demands-the-difficulty-in-rebutting-the-presumption-of-insolvency/ The recent case of Turco & Co Pty Ltd v Pendella Holdings Pty Ltd [2010] FCA 213 illustrates the practical difficulties faced by a debtor company which, in order to avoid being wound up, attempts to rebut a presumption of insolvency as a result of failing to comply with a statutory demand. The case highlights the importance of debtor companies complying with, or setting aside, statutory demands in order to avoid the presumption arising in the first place. Fri, 30 Apr 2010 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/statutory-demands-the-difficulty-in-rebutting-the-presumption-of-insolvency/ http://www.corrs.com.au/publications/tgif/statutory-demands-and-offsetting-claims/ In the recent decision of Australian Cinemas Pty Ltd v Australian Executor Trustees Ltd [2011] FCA 927 the Federal Court considered whether a statutory demand could be varied due to an offsetting claim against the creditor. Fri, 02 Sep 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/statutory-demands-and-offsetting-claims/ http://www.corrs.com.au/publications/tgif/stronger-super-a-new-dawn-for-trustee-governance/ Michael Chaaya, Partner and member of the Corrs Financial Services Industry Division Leadership Team, was invited to submit a paper to the Australian Institute of Superannuation Trustee’s inaugural Research Hub. The Research Hub featured as part of the Conference of Major Super Funds between 28 and 30 March 2011. Tue, 29 Mar 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/stronger-super-a-new-dawn-for-trustee-governance/ http://www.corrs.com.au/publications/tgif/the-camac-report-on-the-sons-of-gwalia-decision/ The High Court’s judgment in the Sons of Gwalia case has raised significant debate amongst secured lenders, creditors and shareholders. Here is a link to this publication’s report on this in March 2007[[sitetree_link id=767]]. Fri, 13 Feb 2009 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/the-camac-report-on-the-sons-of-gwalia-decision/ http://www.corrs.com.au/publications/tgif/the-centro-properties-decision-and-directors-duties-in-relation-to-accounts/ The facts – mistakes in the accounts Wed, 13 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-centro-properties-decision-and-directors-duties-in-relation-to-accounts/ http://www.corrs.com.au/publications/tgif/the-high-court-warns-against-lastditch-amendments-in-litigation/ Earlier this month, the High Court in Aon Risk Services Australia Ltd v ANU* *[2009] HCA 27 held that a party may not be permitted to amend its case at a late stage in litigation if that would unduly compromise the administration of justice in the case. This decision represents a significant shift away from the previously understood position. Fri, 28 Aug 2009 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-high-court-warns-against-lastditch-amendments-in-litigation/ http://www.corrs.com.au/publications/tgif/the-octaviar-decision-overturned-for-now/ Last week, in Re Octaviar Ltd (No 7) [2009] QCA 282, the Queensland Court of Appeal overturned the Octaviar trial decision. Fri, 25 Sep 2009 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-octaviar-decision-overturned-for-now/ http://www.corrs.com.au/publications/tgif/the-erosion-of-autonomy-of-commercial-letters-of-credit/ Commercial letters of credit are a useful tool in facilitating international trade. Their usefulness lies in the autonomy and the certainty which they provide to parties to international sale of goods contracts. However, in Australia, the autonomy and certainty of letters of credit has been eroded by the application of sections 51AA and 51AC of the Trade Practices Act 1974 (Cth) (*TPA*). Fri, 03 Dec 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/the-erosion-of-autonomy-of-commercial-letters-of-credit/ http://www.corrs.com.au/publications/tgif/the-future-of-financial-advice-beyond-ripoll/ An article written by Corrs partner Michael Chaaya titled "The future of financial advice - beyond Ripoll" is featured in the May edition of the Australian Superannuation Law Bulletin. Fri, 18 Jun 2010 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-future-of-financial-advice-beyond-ripoll/ http://www.corrs.com.au/publications/tgif/the-importance-of-directors-informing-themselves-as-to-their-companys-financial-position/ The case of Cooper v Commissioner of Taxation [2009] NSWSC 880, is a useful illustration of the importance of directors ensuring that their company maintains proper financial records and that they inform themselves as to their company’s financial position. Fri, 12 Feb 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/the-importance-of-directors-informing-themselves-as-to-their-companys-financial-position/ http://www.corrs.com.au/publications/tgif/the-power-of-a-liquidator-to-assign-rights-of-a-company/ In the recent case of Owners of Strata Plan 5290 v CGS & Co Pty Ltd [2011] NSWCA 168, the NSW Court of Appeal considered whether s 477(2)(c) of the Corporations Act 2001 (Cth) (the Act) empowers liquidators to assign a right of a company to a third party in circumstances where that right would otherwise be unassignable. Fri, 08 Jul 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-power-of-a-liquidator-to-assign-rights-of-a-company/ http://www.corrs.com.au/publications/tgif/the-priority-of-leave-and-superannuation-entitlements-falling-due-after-commencement-of-receivership-/ Last month, the Federal Court published its reasons in Vickers, in the matter of Challenge Australian Dairy Pty Ltd (Administrators Appointed) (Receivers & Managers Appointed) [2011] FCA 10. Fri, 18 Feb 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/the-priority-of-leave-and-superannuation-entitlements-falling-due-after-commencement-of-receivership-/ http://www.corrs.com.au/publications/tgif/the-ramifications-of-a-defect-in-a-statutory-demand/ In the recent case of Sustainable Organics (Wooshaway) Pty Ltd v Ranger Loaders Pty Ltd [2011] QSC 45, the Supreme Court of Queensland confirmed that a defect in a statutory demand does not necessarily prevent the a creditor from relying on the demand to issue a winding up application. Rather the defect must have caused substantial injustice, or an abuse of process, in order for the demand to be ineffective. Fri, 08 Apr 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/the-ramifications-of-a-defect-in-a-statutory-demand/ http://www.corrs.com.au/publications/tgif/uncommercial-transactions-not-all-about-undervaluation/ In the recent case of The Old Kiama Wharf Company Pty Ltd (in liquidation) v Betohuwisa Investments Pty Limited & Anor [2011] NSWSC 823, the liquidator of The Old Kiama Wharf Company Pty Ltd (*OKW*) sought to set aside a transaction between OKW and Betohuwisa Investments Pty Limited (*Betohuwisa*) on the basis that it was uncommercial under s 588FB(1) of the Corporations Act 2001 (Cth). Fri, 19 Aug 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/uncommercial-transactions-not-all-about-undervaluation/ http://www.corrs.com.au/publications/tgif/unsuccessful-application-by-independent-creditors-to-set-aside-doca-passed-by-related-creditors/ On 4 March 2011, the Federal Court gave judgement in the case of Mediterranean Olives Financial Pty Ltd v Loaders Traders Pty Ltd (No 2) [2011] FCA 178. Fri, 18 Mar 2011 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/unsuccessful-application-by-independent-creditors-to-set-aside-doca-passed-by-related-creditors/ http://www.corrs.com.au/publications/tgif/update-on-octaviar/ Previously, we have commented on the proceedings surrounding the insolvency of Octaviar Limited (*Octaviar*). Fri, 19 Mar 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/update-on-octaviar/ http://www.corrs.com.au/publications/tgif/variation-of-a-secured-liability-can-require-registration-if-contemplated-by-the-original-instrument/ In Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37, the Queensland Supreme Court considered the circumstances in which a variation to a registered charge must be notified to ASIC. Fri, 13 Mar 2009 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/variation-of-a-secured-liability-can-require-registration-if-contemplated-by-the-original-instrument/ http://www.corrs.com.au/publications/tgif/voidable-transactions-importance-evidence/ The recent case of Roufeil v Gliderol International Pty Ltd [2011] FCA 847 addresses voidable transactions within the meaning of s 588FE(2) of the Corporations Act 2001 (Cth) (Act) and considers the element of insolvency and defences available. Fri, 16 Sep 2011 00:00:00 +1000 http://www.corrs.com.au/publications/tgif/voidable-transactions-importance-evidence/ http://www.corrs.com.au/publications/tgif/winding-up-corporate-trustees-liquidators-entitlement-to-remuneration-and-expenses-from-multiple-trusts/ The recent case of Re Dalewon Pty Ltd [2010] QSC 311 has served as a useful reminder of the circumstances in which a liquidator of a corporate trustee can recover their remuneration and expenses from trust assets. The decision also considers what a liquidator must establish where the liquidator is winding up a corporate trustee who administers multiple trusts. Fri, 15 Oct 2010 00:00:00 +1100 http://www.corrs.com.au/publications/tgif/winding-up-corporate-trustees-liquidators-entitlement-to-remuneration-and-expenses-from-multiple-trusts/ http://www.corrs.com.au/publications/tgif/mortgagees-failure-register-charge-within-time-guarantors-obligations/ In the decision of Commonwealth Bank of Australia v Anand [2011] NSWSC 613, the Supreme Court of New South Wales considered whether a mortgagee’s failure to register a charge within time, thereby rendering the charge void, would impact on a guaranto Fri, 23 Sep 2011 12:19:13 +1000 http://www.corrs.com.au/publications/tgif/mortgagees-failure-register-charge-within-time-guarantors-obligations/ http://www.corrs.com.au/publications/tgif/receivers-and-legal-professional-privilege/ In the recent decision of Carey v Korda & Winterbottom [No 2] [2011] WASC 220 the Supreme Court of Western Australia considered whether receivers were entitled to assert legal professional privilege over documents as against a director of the companies to which they were appointed. Fri, 30 Sep 2011 14:36:51 +1000 http://www.corrs.com.au/publications/tgif/receivers-and-legal-professional-privilege/ http://www.corrs.com.au/publications/tgif/winding-up-application-valid-despite-defects-in-service/ The recent decision of the New South Wales Supreme Court in the matter of Industrial Installation and Access Systems Pty Limited [2011] NSWSC 1032 held that there was a valid winding up application under s 459P of the Corporations Act 2001 (Cth) (*Act*) despite there being no effective service of the originating process. Fri, 07 Oct 2011 15:32:01 +1100 http://www.corrs.com.au/publications/tgif/winding-up-application-valid-despite-defects-in-service/ http://www.corrs.com.au/publications/tgif/when-should-receivership-terminated/ In the decision of Goldana Investments Pty Ltd (Receivers & Managers appointed) v National Mutual Life Nominees Ltd & Ors [2011] NSWSC 1134, the Supreme Court of New South Wales considered when a receivership should be terminated. Fri, 14 Oct 2011 23:32:26 +1100 http://www.corrs.com.au/publications/tgif/when-should-receivership-terminated/ http://www.corrs.com.au/publications/tgif/preference-payments-considering-the-surrounding-circumstances/ In the case of Chicago Boot Co Pty Ltd v Davis & McIntosh as Joint & Several Liquidators of Harris Scarfe Ltd [2011] SASCFC 92, the liquidator of the Harris Scarfe Group (*HS*) sought to set aside a series of payments made by the company to Chicago Boot Co Pty Ltd (*CB*) on the basis that they were voidable preference payments pursuant to s588FA of the Corporations Act 2001 (Cth).  The main issue on appeal was whether CB had established the good faith defence under s588FG(2) of the Corporations Act 2001 (Cth), in particular, whether CB suspected HS was insolvent at the time that the payments were made. Fri, 21 Oct 2011 15:30:42 +1100 http://www.corrs.com.au/publications/tgif/preference-payments-considering-the-surrounding-circumstances/ http://www.corrs.com.au/publications/tgif/commencing-proceedings-against-liquidator/ In the recent decision of Armitage v Gainsborough Properties Pty Ltd & Anor [2011] VASC 419 (31 August 2011) the Supreme Court of Victoria considered whether leave from the Court was required to bring a claim against a liquidator. Fri, 28 Oct 2011 15:33:23 +1100 http://www.corrs.com.au/publications/tgif/commencing-proceedings-against-liquidator/ http://www.corrs.com.au/publications/tgif/statutory-demands-set-aside-for-some-other-reason/ In the recent decision of Radiomio Pty Ltd v Kendell; SISS Business Systems Limited v Kendell [2011] VSC 511 the Victorian Supreme Court considered when a statutory demand will be set aside for ‘some other reason’. Fri, 04 Nov 2011 15:26:24 +1100 http://www.corrs.com.au/publications/tgif/statutory-demands-set-aside-for-some-other-reason/ http://www.corrs.com.au/publications/tgif/d-and-o-policies-and-litigation-defence-costs-under-threat/ In the recent decision of Steigrad v Bridgecorp Limited [2011] NZHC 1037 (*Bridgecorp*) the High Court of New Zealand held that an insured person could be prevented from accessing funds pursuant to an insurance policy to conduct their defence, because of the operation of a “statutory charge” over the proceeds of the policy. Fri, 11 Nov 2011 12:26:59 +1100 http://www.corrs.com.au/publications/tgif/d-and-o-policies-and-litigation-defence-costs-under-threat/ http://www.corrs.com.au/publications/tgif/landlord-s-right-to-recover-property-from-a-company/ In the decision of Re Colorado Group Limited [2011] VSC 552, the Supreme Court of Victoria considered the circumstances in which a landlord might be granted leave under section 440C of the Corporations Act 2001 (*Act*) to recover possession of a property from a company in administration. Fri, 18 Nov 2011 15:43:17 +1100 http://www.corrs.com.au/publications/tgif/landlord-s-right-to-recover-property-from-a-company/ http://www.corrs.com.au/publications/tgif/substituted-service-creditors-demand-foreign-company/ In the recent decision of TPG Newbridge Myer Ltd v The Deputy Commissioner of Taxation [2011] FCA 1157, the Federal Court of Australia considered the process of serving demands on foreign debtors under Part 5.7 of the Corporations Act 2001 (Cth) (*Act*). Fri, 25 Nov 2011 14:46:37 +1100 http://www.corrs.com.au/publications/tgif/substituted-service-creditors-demand-foreign-company/ http://www.corrs.com.au/publications/tgif/bankrupt-here-and-bankrupt-there-cross-border-insolvency/ For the first time in Australia the Court considers whether a sequestration order should be made against a debtor already under insolvency administration in another jurisdiction. Fri, 02 Dec 2011 15:05:04 +1100 http://www.corrs.com.au/publications/tgif/bankrupt-here-and-bankrupt-there-cross-border-insolvency/ http://www.corrs.com.au/publications/tgif/liquidation-when-to-terminate/ In the case of Stolar Joinery (Aust) Pty Ltd v Charterarm Investments Pty Ltd (in liq) [2011] VSC 577 the Supreme Court of Victoria considered the issue of when a liquidation may be terminated. Fri, 09 Dec 2011 14:34:26 +1100 http://www.corrs.com.au/publications/tgif/liquidation-when-to-terminate/ http://www.corrs.com.au/publications/tgif/unfair-contracts/ In the recent unreported decision of Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260, the New South Wales Court of Appeal upheld a determination made under the Contracts Review Act 1980 (NSW) (*CRA*), that a deed of loan and mortgage were unjust and unenforceable. Fri, 16 Dec 2011 14:48:43 +1100 http://www.corrs.com.au/publications/tgif/unfair-contracts/ http://www.corrs.com.au/publications/tgif/priority-of-floating-charge-over-a-third-party-guarantee/ In the recent decision of Bank of Western Australia v National Australia Bank Ltd [2011] QSC 379, the Supreme Court of Queensland considered whether a fixed and floating charge over assets took priority when those assets had been used to guarantee a third party loan from a different lender. Fri, 17 Feb 2012 14:14:18 +1100 http://www.corrs.com.au/publications/tgif/priority-of-floating-charge-over-a-third-party-guarantee/ http://www.corrs.com.au/publications/tgif/liquidators-power-to-disclaim-onerous-property/ For the first time in Australia, the Court determines whether a liquidator is able to disclaim a contract, where the subject of that contract is the conferral of an interest in land. Fri, 24 Feb 2012 14:46:39 +1100 http://www.corrs.com.au/publications/tgif/liquidators-power-to-disclaim-onerous-property/ http://www.corrs.com.au/publications/tgif/the-european-court-of-justice-adds-to-the-global-debate-on-isp-liability-for-illegal-downloading/ Late last year the European Court of Justice (*ECJ*) delivered its eagerly awaited decision in Scarlet Extended SA v SABAM[1]. It ruled that a Belgian court’s injunction, requiring an Internet Service Provider (*ISP*) to install monitoring and filtering systems aimed at preventing the illegal downloading of files, was contrary to EU legislation – namely, the European Directive on Electronic Commerce (*the Directive*)[2].    Fri, 02 Mar 2012 15:05:09 +1100 http://www.corrs.com.au/publications/tgif/the-european-court-of-justice-adds-to-the-global-debate-on-isp-liability-for-illegal-downloading/ http://www.corrs.com.au/publications/tgif/the-high-court-cautions-against-refinancing-a-farm-debt-following-a-farm-debt-mediation/ Last week, the High Court shed some useful light on the meaning of “farm mortgage” under the Farm Debt Mediation Act 1994 (NSW) (*Act*) in its decision of Waller v Hargraves Secured Investments Ltd [2012] HCA 4.  Fri, 09 Mar 2012 14:06:37 +1100 http://www.corrs.com.au/publications/tgif/the-high-court-cautions-against-refinancing-a-farm-debt-following-a-farm-debt-mediation/ http://www.corrs.com.au/publications/tgif/the-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. Fri, 16 Mar 2012 14:45:29 +1100 http://www.corrs.com.au/publications/tgif/the-impact-of-bankruptcy-on-proceedings-commenced-by-a-person-in-his-or-her-capacity-as-trustee/ http://www.corrs.com.au/publications/tgif/how-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. Fri, 23 Mar 2012 15:00:52 +1100 http://www.corrs.com.au/publications/tgif/how-are-employee-entitlements-to-be-paid-when-receivers-and-liquidators-are-appointed-concurrently/ http://www.corrs.com.au/publications/tgif/unfair-preference-transactions-and-payments-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. Fri, 30 Mar 2012 15:23:58 +1100 http://www.corrs.com.au/publications/tgif/unfair-preference-transactions-and-payments-ato/ http://www.corrs.com.au/publications/tgif/valuing-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”. Thu, 05 Apr 2012 14:50:10 +1000 http://www.corrs.com.au/publications/tgif/valuing-debts-for-the-purposes-of-creditors-voting-powers/ http://www.corrs.com.au/publications/tgif/liquidators-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. Fri, 13 Apr 2012 11:51:52 +1000 http://www.corrs.com.au/publications/tgif/liquidators-and-litigation-funders-the-production-and-confidentiality-of-documents/ http://www.corrs.com.au/publications/tgif/public-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. Fri, 20 Apr 2012 14:42:46 +1000 http://www.corrs.com.au/publications/tgif/public-examinations-conducted-by-receivers-constitutionally-valid/ http://www.corrs.com.au/publications/tgif/appointment-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. Fri, 27 Apr 2012 14:01:44 +1000 http://www.corrs.com.au/publications/tgif/appointment-of-provisional-liquidators-the-need-for-an-imminent-threat-to-assets/ http://www.corrs.com.au/publications/tgif/asic-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. Fri, 04 May 2012 15:12:29 +1000 http://www.corrs.com.au/publications/tgif/asic-secures-high-court-victory-against-james-hardie-directors/ http://www.corrs.com.au/publications/tgif/choice-constructions-pty-ltd-v-janceski-no-3-2011-wasc-358/ Unconscionable conduct – a reminder Fri, 11 May 2012 15:57:43 +1000 http://www.corrs.com.au/publications/tgif/choice-constructions-pty-ltd-v-janceski-no-3-2011-wasc-358/ http://www.corrs.com.au/publications/tgif/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. Fri, 18 May 2012 15:42:02 +1000 http://www.corrs.com.au/publications/tgif/liquidator-s-examinations-gaining-access-to-an-affidavit-in-support/