Home | Book Contents | Insolvency Practitioners | Forms - Coys | Forms - Bankruptcy | Contact Us |
|
Providing free on-line assistance and guidance for all persons affected by individual or corporate insolvency in Australia |
|
|
|
COURT JUDGMENTS - corporations Last updated 7/6/2018 |
CITATION (& link to judgment) |
CATCHWORDS AND LEGISLATION |
DELIVERED |
||||||
Joubert and Members of the Companies Auditors and Liquidators Disciplinary Board [2018] AATA 944 |
CORPORATIONS – liquidators – duties and functions of an
administrator and liquidator – whether applicant failed to
carry out or perform adequately and properly the duties of a
liquidator – whether failure to disclose relevant relationships –
“relationship”, meaning of – whether failure to disclose
indemnities and payments received – whether failure to
investigate causes of company failures – whether failure to have
proper or adequate systems in place – whether applicant is a fit and
proper person to remain registered as a liquidator – whether failure
to perform adequately and properly the duties of a liquidator –
whether applicant acted recklessly or dishonestly – failure
to disclose relevant relationship amounted to dishonesty –
lack of due care and diligence established – applicant not a fit and
proper person to remain registered as a liquidator – decision
affirmed |
19 April 2018 | ||||||
In the matter of Heavy Plant Leasing Pty Ltd (In Liquidation) (ACN 151 786 677) [2018] NSWSC 707 |
CORPORATIONS — Winding up — Recovery proceedings — Voidable
transactions – where company insolvent – whether reasonable
grounds for recipient to suspect insolvency – relevance of
delay in payment – relevance of actual payment Legislation Cited: (CTH) Corporations Act 2001 ss 588FF, 588FG |
8 February 2018 | ||||||
Roufeil (Liquidator), in the matter of Leighton Scaffolding Pty Ltd (in liq) [2018] FCA 34 |
CORPORATIONS – application for appointment of new liquidator
pursuant to s 473A of the Corporations Act 2001 (Cth) upon
resignation of existing liquidator – application for appointment of
liquidator as receiver and manager under s 57(1) of the Federal
Court of Australia Act 1976 (Cth) – application for judicial advice
pursuant to s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth)
– applications granted (PJK - Example missing books and
records) |
2 February 2018 | ||||||
Deputy Commissioner of Taxation v Lawson [2017] VSC 789 |
TAXATION – Director penalty liabilities – Superannuation
guarantee charge – Division 269 of Schedule 1 to the
Taxation Administration Act 1953 – Director penalty notice
– Director’s liability for penalty amounts – Defence to claim for
indemnity if good reason or illness exists for non-participation in
management of company – Superannuation Guarantee Act 1992 (Cth) –
Corporations Act 2001 – Taxation Administration Regulations 1976
(Cth) – Service of director penalty notice – Acts Interpretation Act
1901 (Cth) - Deputy Commissioner of Taxation v Clark [2003] NSWCA
91; (2003) 57 NSWLR 113 |
21 December 2017 | ||||||
Re Atwell & Co Pty Ltd (in liq) [2017] VSC 683 |
APPEAL – Appeal from associate judge under Supreme Court (General
Civil Procedure) Rules 2015 (Vic) r 77.06 – Determination of
liquidators’ remuneration pursuant to Corporations Act 2001 (Cth) s
504 – Leave sought to file appeal out of time – Extension
of time granted – Whether error in finding of facts – No error –
Whether error in applying principle of proportionality – No error –
Appeal dismissed. ... "This is an appeal from a decision of
Associate Justice Efthim made on 14 December 2016 (the Reasons) that
the plaintiff liquidators, Mr Dennis Anthony Turner and Mr Luke
Christopher Targett (Liquidators), are entitled to receive
remuneration fixed in the sum of $252,000 for the period of
liquidation of the defendant from 24 September 2015 to the
completion of the liquidation. In so saying, his Honour stated that
he was satisfied that the Liquidators’ claim was ‘reasonable’
for the purposes of s 504(2) of the Corporations Act 2001 (Cth) (the
Act)." |
12 December 2017 | ||||||
Queensland Nickel (in liq), Re [2017] QSC 258 |
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –
SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF
PROCEEDINGS – CONSOLIDATION OF PROCEEDINGS – where 10 proceedings
related to the liquidation of Queensland Nickel Pty Ltd are being
managed concurrently on the commercial list – whether four
of the proceedings should be consolidated – whether an
alternative course may be adopted |
9 November 2017 | ||||||
In the matter of Hilbon Transport Pty Limited [2017] NSWSC 1311 |
CORPORATIONS – external administration – winding up – winding up by
the court – liquidators – retention of books – early
destruction – effect of amendments introduced by Insolvency
Law Reform Act – held, in the present case, repealed Corporations
Act, s 542, still available. Legislation Cited: (CTH) Corporations Act 2001, s 480, s 542, s 1596, s 1617; Schedule 2, s 70-35 |
28 September 2017 | ||||||
Australian Securities and Investments Commission v Gognos Holdings Ltd [2017] QSC 207 |
CORPORATIONS – WINDING UP - OTHER GROUNDS FOR WINDING UP – JUST AND
EQUITABLE – where the companies have contravened the Corporations
Act 2001 by failing to lodge financial reports, report annually to
members, hold annual general meetings and keep and produce accurate
accounting records, and the contraventions are continuing –where the
companies made untrue statements to the ASX and misleading
representations to investors, and there has been mismanagement in
the conduct of the affairs of the companies – where the companies
are not clearly solvent – where the companies did not contest, but
did not concede most of the allegations as to past conduct – where
the companies relied on recent changes to the directors of both
companies, the provision of a $400,000 line of credit facility to
reactivate the business of the companies, and undertakings to have
the outstanding accounts prepared and audited, and by former
directors not to seek or obtain office as directors for five years,
in opposing the winding up orders – whether there is and remains a
well-founded and justified lack of confidence in the conduct and
management of the companies’ affairs, giving rise to a real risk to
the public interest that warrants protection – whether the
companies should be wound up on the just and equitable ground |
25 September 2017 | ||||||
Korda, in the matter of Ten Network Holdings Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2017] FCA 914 (18 July 2017) |
CORPORATIONS – meeting of creditors – application by administrators
for extension of convening period. CORPORATIONS –
communication with creditors – application by administrators for
orders modifying the manner in which notice of second meeting of
creditors and report in accordance with s 439A of the Corporations
Act 2001 (Cth) to be given. CORPORATIONS – appointment of administrators – where administrators engaged prior to appointment to prepare a contingency administration plan – whether pre-administration engagement gives rise to apprehension of conflict of interest. LEGISLATION: Corporations Act 2001 (Cth), ss 420, 435A, 436A, 436DA, 439A(4), 439A(6), 447A; Federal Court of Australia Act 1976 (Cth), s 37AF; Corporations Amendment (Insolvency) Bill 2007 (Cth); Explanatory Memorandum to the Corporations Amendment (Insolvency) Bill 2007 (Cth). |
11 August 2017 | ||||||
In the matter of DH International Pty Ltd (in liq) (No.2) [2017] NSWSC 871 |
CORPORATIONS – external administration – assignment to member of
committee of inspection of any causes of action the company might
have for compensation for breach of fiduciary and statutory duties
and accessorial liability – application by committee member for
leave nunc pro tunc to enter transaction prohibited by s 551,
Corporations Act – where transaction approved by unanimous
resolution of creditors – where committee of inspection not involved
in approval of the transaction – where member of committee
of inspection did not advert to restrictions on acquisition of
company property when entering into deed of assignment –
whether potential partial invalidity of purported assignment infects
or otherwise renders whole assignment invalid – whether
discretionary factors tend against grant of leave. |
30 June 2017 | ||||||
Pearce v Gulmohar Pty Ltd [2017] FCA 660 |
CORPORATIONS – alleged voidable transactions within s 558FE
of the Corporations Act 2001 (Cth) – whether company insolvent at
the time of making payments to related parties – extent of company’s
debts – whether directors or related companies were likely to offer
financial support – whether transactions were insolvent transactions
within s 588FC – whether transactions were unfair
preferences within s 588FA – whether transactions were
uncommercial transactions within s 588FB – whether
transactions were “unreasonable director-related
transactions” within s 588FDA – whether benefit of the
transaction was received in good faith – whether directors
breached statutory duties under ss 181-183 and fiduciary duties
– relief |
23 June 2017 | ||||||
In the matter of Sakr Nominees Pty Limited [2017] NSWSC 668 |
CORPORATIONS – Winding up – Liquidators – Application by
liquidator under Corporations Act 2001 (Cth) s 473(b)(ii) to
determine remuneration – where additional work not
anticipated at time of creditors’ prospective approval of
remuneration – whether work performed by liquidator was reasonably
necessary. Release of liquidator. Legislation Cited: - Corporations Act 2001 (Cth), ss 473, 480 - Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2017 (Cth) - Corporations Regulations 2001 (Cth), reg 10.25.02(3)(g) - Insolvency Law Reform Act 2016 (Cth) - Supreme Court (Corporations) Rules 1999 (NSW), rr 7.5(3)–7.5(5) |
29 May 2017 | ||||||
Kaizen Global Investments Limited, in the matter of Australia New Agribusiness & Chemical Group Limited (in liq) v Australia New Agribusiness & Chemical Group Limited (in liq) [2017] FCA 431 |
CORPORATIONS – security interests – registration –
application for order fixing a later time for registration
– where mortgagee failed to register share mortgage on the Personal
Property Securities Register within 20 business days – where
mortgagee subsequently registered the share mortgage – where
mortgagor went into administration and subsequently liquidation –
principles applicable to exercise of discretion to fix a later time
– significance of winding up of mortgagor company – whether order
should be made fixing a later time. Legislation: Corporations Act 2001 (Cth), ss 51, 266, 588FM, 588FL Evidence Act 1995 (Cth), ss 64, 67, 68 Personal Property Securities Act 2009 (Cth), s 267 Personal Property Securities (Corporations and Other Amendments) Act 2010 (Cth) |
28 April 2017 | ||||||
Hancock and Tonks, in the matter of Blackwater Quarries & Concrete Pty Ltd (Administrators appointed) [2017] FCA 447 |
CORPORATIONS – application to extend the convening period
for the second meeting of creditors under s 439A(6) of the
Corporations Act 2001 (Cth) – where company in administration –
where creditors consent to extension of time – where administrators
seeking sale of certain assets of relevant companies – application
granted. Legislation: Corporations Act 2001 (Cth) ss 436A, 439A, 439A(5), 439A(6) |
24 April 2017 | ||||||
Walley, in the matter of Poles & Underground Pty Ltd (Administrators Appointed) [2017] FCA 486 |
CORPORATIONS – winding up – creditors’ voluntary winding up –
liquidators – application by liquidator for order that liquidators
are justified in continuing in their role – whether liquidators in
position of conflict of interest or whether there could be a
reasonable perception of conflict of interest – where
liquidators had provided accounting services to company prior to
appointment – no real or perceived conflict of interest found –
application granted. |
19 April 2017 | ||||||
Campbell-Wilson v Australian Securities and Investments Commission [2017] FCA 391 |
CORPORATIONS – application for order that Australian Securities and
Investments Commission deregister company on a specified day
– whether to exercise discretion to make order – considerations
relevant to the exercise of discretion – application allowed.
Corporations Act 2011 (Cth) s 509 |
11 April 2017 | ||||||
ASIC v Flugge (No 2) [2017] VSC 117 |
CORPORATIONS – Penalties for breach of officer’s duties of s
180 of the Corporations Act 2001 (Cth) (Corporations Act) –
Declaration of contravention – Whether disqualification orders
should be made – Whether pecuniary penalties orders should be made –
Factors to be considered in imposing penalties – Considerations of
penalties imposed on other officers of AWB – Whether conduct serious
– Sections 206C, 1317E and 1317G of the Corporations Act. CORPORATIONS – Application for exoneration from liability for contravention of s 180 of the Corporations Act – Factors to be considered in exercising discretion to grant relief – Whether declaration of contravention must be made – Application refused – Sections 1718S and 1318 of the Corporations Act. PRACTICE AND PROCEDURE – Costs – Exercise of discretion as to costs in a complex case involving many issues – Where separate and discrete issues – Plaintiff won some issues but lost others – Order that there be no order as to costs – Rule 63.04 Supreme Court (General Civil Procedure) Rules 2005 (Vic). |
10 April 2017 | ||||||
Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 Pty Ltd (in liq) [2017] FCA 444 |
CORPORATIONS – winding up – creditors’ voluntary winding up –
application for appointment of special purpose liquidator
– whether purpose of appointment beneficial – creditor willing to
fund special purpose liquidator but not existing liquidator –
whether existing liquidator likely to be able to find funding for
proposed investigation – whether existing liquidator in a position
of perceived conflict of interest – application granted. |
6 April 2017 | ||||||
Mighty River International Ltd -v- Hughes & Bredenkamp [2017] WASC 69 |
CORPORATIONS - Administrator - Whether pre-appointment
contact such as to have deed of company arrangement set
aside or administrator replaced - 'Holding DOCA' -
Whether permitted under Act - Whether DOCA complied with requirement
of Act. |
16 March 2017 | ||||||
Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38 |
CORPORATIONS – winding up – liquidators remuneration
– whether error in failing to take into account the reasonableness
of the work performed, the hourly rate and the time taken – whether
error in applying considerations of proportionality – whether error
in applying rates of ad valorem remuneration – whether failure to
take into account that creditors had approved remuneration on the
basis of time costing. |
9 March 2017 | ||||||
In the matter of MINMXT Holdings Pty Ltd (In liquidation) [2017] NSWSC 156 |
TRUSTS AND TRUSTEES – equitable interests in trust property –
company acting solely as trustee – orders for winding up and
appointment of liquidator made – liquidator later appointed by the
court to be receiver of the trust property – application by
liquidator/receiver for approval of remuneration and expenses
– quantification thereof – claim by liquidator/receiver that total
remuneration and expenses be paid out of trust estate in priority to
all other claims and interests – whether such priority warranted –
whether confined to remuneration and expenses of recovery,
care and preservation of trust property – whether present
application is a suitable context for adjudicating all claims to
priority over beneficiaries. |
28 February 2017 | ||||||
Weston, in the matter of Flush Fitness Pty Ltd (Administrator Appointed) [2017] FCA 172 |
CORPORATIONS – application for an extension of the convening
period for the second meeting of creditors of a trustee
company under s 439A(6) of the Corporations Act 2001 (Cth) – whether
to grant the application. Legislation: Corporations Act 2001 (Cth), s 439A(6), s 439A(5), s 439A(1), s 447A(1), s 439A(2), s 439A(4), Pt 5.3A National Measurement Act 1960 (Cth) |
28 February 2017 | ||||||
D Pty Ltd (in liq) v Calas (Trustee), in the matter of D Pty Ltd (in liq) [2016] FCA 1409 |
CORPORATIONS – winding-up – voidable transactions –
unreasonable director-related transactions – where Family
Court of Australia made consent orders creating a charge
over property of a company as security for obligations of the
husband – where company subsequently went into liquidation – where
liquidator contended that the charging of property pursuant to an
agreement to settle the Family Court proceeding was an
unreasonable director-related transaction – whether a
charge was created by agreement – whether, if such a charge was
created, a reasonable person in the company’s circumstances would
not have entered into the transaction – whether appropriate to make
declarations sought in circumstances where declarations would
conflict or appear to conflict with orders of the Family
Court |
25 November 2016 | ||||||
BCI Finances Pty Limited (in liq) v Binetter (No 4) [2016] FCA 1351 |
CORPORATIONS – directors’ duties – scheme for
purpose of evading or avoiding liability to pay income tax –
companies did not benefit from participation in scheme – whether
directors breached duties – whether breach of duties
resulted in tax liabilities – whether other respondents
knowingly participated in breaches of duty |
18 November 2016 | ||||||
Brentwood Village Limited (in liq) v Terrigal Grosvenor Lodge Pty Limited (No 4) [2016] FCA 1359 |
CORPORATIONS – alleged breach of directors’ duties under ss
181 and 182 of the Corporations Act 2001 (Cth) – where the
impugned transactions involved the transfer of an asset with no
evidence of payment of any consideration and the sale of a
second asset for less than market value – where the
impugned transactions entered into for the benefit of entities
related to the respondent |
18 November 2016 | ||||||
Australian Securities and Investments Commission v McDermott, in the matter of Conalpin Pty Ltd (in liq) [2016] FCA 1186 |
CORPORATIONS – liquidators – duties – Court inquiry into defendant’s
conduct as a liquidator and administrator – whether defendant failed
to act independently, free of actual, apparent or potential
conflicts of interests – whether defendant acted with the
appropriate degree of care and diligence – whether defendant failed
to properly inform creditors of the basis for remuneration and
drew
down remuneration without properly informed creditor approval or
Court approval – agreement between the parties to settle the matter
– whether consent orders should be made |
4 October 2016 | ||||||
QNI Resources Pty Ltd & Ors v Park & Ors [2016] QSC 222 |
CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP –
PROCEEDINGS BY OR AGAINST THE COMPANY – LEAVE TO PROCEED – GENERALLY
– where the applicants are two joint venturers and the current
manager of the joint venture – where the fifth respondent
(“Queensland Nickel”) is the former manager of the joint venture and
a company in liquidation – where the applicants advance contractual
and equitable claims against Queensland Nickel which rely on an
unconditioned obligation to return joint venture property – where an
essential aspect of the applicants’ pleaded case is the negation of
Queensland Nickel’s entitlement to an indemnity that may confer
proprietary or beneficial rights in the joint venture property –
whether the applicants’ pleaded case establishes a serious question
to be tried in respect of the claims advanced EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – RELEVANT PRINCIPLES – where the applicants assert that Queensland Nickel held joint venture property as “bare trustee” for the joint venturers – nature of the trustee’s right to indemnity in respect of liabilities incurred in the execution of the trust EQUITY – EQUITABLE REMEDIES – GENERALLY – whether an equitable lien will arise, even where assets are not held on trust, where the equity of the case demands it EQUITY – EQUITABLE REMEDIES – ACCOUNTS AND INQUIRIES – GENERALLY – where the applicants assert a claim for an account – where the applicants must do more than demonstrate that they might be owed some money – where taking of account is not appropriate unless the applicants establish that there is, or likely to be, a surplus after the satisfaction of the obligation – where relevant consideration is whether applicants have entered into any agreement, or have disclosed any capacity to repay any deficiency which might arise on the taking of the account – whether the applicants’ pleaded case makes out a serious question to be tried as to the entitlement of an order for an account EQUITY – GENERAL PRINCIPLES – RULES AND MAXIMS OF EQUITY – WHOEVER SEEKS EQUITY MUST DO EQUITY – where the applicants seek the aid of a court in equity to enforce a claim – where applicants must do justice as to the matters in respect of which the assistance is asked |
29 September 2016 | ||||||
Australian Securities and Investments Commission v Letten (No 25) [2016] FCA 1127 |
CORPORATIONS – unregistered managed investment schemes – entitlement
of receivers to remuneration – reasonable remuneration and
reasonable costs and expenses – approval of remuneration by
Registrar – primary judge’s review of decision of Registrar – appeal
from that review – evaluative judgment – concept of proportionality
– grounds of appeal upheld in part – application for review remitted
for rehearing – whether reductions on remuneration and disbursements
claimed are justified |
15 September 2016 | ||||||
In the matter of Idylic Solutions Pty Ltd as trustee for Super Save Superannuation Fund and others [2016] NSWSC 1292 |
CORPORATIONS — unregistered managed investment schemes — where
liquidators of several unregistered managed investment schemes
sought approval under s 601EE(2) of the Corporations Act 2001 (Cth)
of their existing and anticipated future remuneration in
respect of the winding up of the schemes on a time-based approach
– where liquidators sought directions that they would be
justified in distributing assets of the schemes on a basis giving
liquidators’ claims first priority – whether the Court should grant
remuneration on a time-based approach as sought by the liquidators –
whether the Court should approve prospective remuneration
sought by the liquidators – whether liquidators’ claims in respect
of their remuneration and costs be given first priority –
whether liquidators’ costs of the proceedings be paid out of the
assets of the respective schemes. |
14 September 2016 | ||||||
Loi (Administrator) v Veraz Enterprises Pty Ltd; In the Matter of
Homeland Furniture Wollongong Pty Ltd (Administrator Appointed)
[2016] FCA 1109
|
COSTS – whether costs should be awarded to the plaintiff on an indemnity basis – whether costs should be paid as a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 | 9 September 2016 | ||||||
Australian Securities and Investments Commission v Uglii Corporation Ltd [2016] FCA 1099 |
CORPORATIONS – application for appointment of provisional liquidator
– principles to be applied when considering whether to appoint
provisional liquidator – whether reasonable prospect that winding up
order will be made – whether public interest considerations –
whether less intrusive measures will address the circumstances - just and equitable ground – whether justifiable lack of confidence in the conduct and management of the company’s affairs |
8 September 2016 | ||||||
Secatore, in the matter of In-Fusion Management Pty Ltd (Administrators Appointed) [2016] FCA 1072 |
CORPORATIONS – insolvency – voluntary administration –
extension of time for convening second creditors’ meeting –
s 439A(6) of the Corporations Act 2001 (Cth) – reasons for
justifying extension – extension granted |
2 September 2016 | ||||||
Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v
Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd
(In Liq) [2016] FCA 1094 |
CORPORATIONS - Public Examination | 2 September 2016 | ||||||
Palmer, in the matter of Queensland Nickel Pty Ltd (In Liq) v
Parbery, in his capacity as Liquidator of Queensland Nickel Pty Ltd
(In Liq) [2016] FCA 1048 |
CORPORATIONS – consideration of applications to set aside
examination summonses issued under s 596A and s 596B of the
Corporations Act 2001 (Cth) – consideration of applications to set
aside those aspects of the summonses seeking the production of
documents |
29 August 2016 | ||||||
Ashala Model Agency Pty Ltd (in liq) & Anor v Featherstone & Anor [2016] QSC 121 |
CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP –
EFFECT OF WINDING UP ON OTHER TRANSACTIONS – PREFERENCES AND
VOIDABLE TRANSACTIONS – UNCOMMERCIAL TRANSACTIONS – where
the first defendant leased premises to the plaintiff company for
three years for $166,050 payable yearly in advance, but agreed no
rent would be payable until demand was made – where the plaintiff
company paid, on the first defendant’s behalf, a $23,00 deposit for
a residential unit, then the $435,010 balance of the purchase price
– where the first defendant had agreed to accept the reduced sum of
$460,000 for rent owing – where the plaintiff company was insolvent
and the transaction left it unable to meet its taxation obligations
– where the plaintiffs alleged that the transaction was an
uncommercial transaction voidable under s 588FE(5) –
whether an unfair preference is capable of constituting an
uncommercial transaction where no undervalue is involved – whether a
reasonable person in the company’s circumstances would enter into
the transaction for the purpose of leaving other creditors unpaid in
a winding up – whether the first defendant’s purpose in causing the
payments to be made was to delay, defeat or interfere with other
creditors CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – WHAT CONSTITUTES INSOLVENCY – GENERALLY – where the plaintiff company had been experiencing cash flow shortage and current asset deficiency – where the first defendant had agreed to indemnify the first plaintiff from all costs, claims and expenses, but allowed the plaintiff company to cease trading without providing assistance or attending to its known taxation liabilities – whether the first defendant was truly willing to provide the support required – whether the plaintiff company was insolvent |
6 June 2016 | ||||||
In the matter of Cipcon Pty Ltd (in liquidation) [2016] VSC 262 |
PRACTICE AND PROCEDURE –Application by liquidator of a company for leave to represent company in public examinations – Supreme Court Rule 1.17(1) – s 596A and s 596B of the Corporations Act 2001 (Cth). | 20 May 2016 | ||||||
Kis Realty Pty Ltd -v- Yeo & Rimbaldi [2016] WASC 149 |
CORPORATIONS LAW - Appeal against liquidators rejection of plaintiff's proof of debt - Turns on own facts. Corporations Regulation 2001 (Cth) - regulation 5.6.54; Property Stock and Business Agents Act 2002 (NSW) | 19 May 2016 | ||||||
Re Koori Employment Enterprises Co-Operative Ltd (In Liquidation)
[2016] VSC 245 |
CO-OPERATIVES – s 449 of the Co-operatives National Law – Application for review of remuneration of liquidator of Co-operative – Application of discretionary criteria prescribed by s 504 of the Corporations Act 2001 (Cth) – Application opposed – Orders made increasing liquidator’s remuneration. | 13 May 2016 | ||||||
Giovanni Maurizio Carrello as Liquidator of Perrinepod Pty Ltd (In
Liq) -V- Perrine Architecture Pty Ltd [2016] WASC 145 |
COMPANIES - Insolvent trading - Incurring a debt - Uncommercial transactions - Unreasonable director-related transactions. Legislation: Construction Contracts Act 2004 (WA), s 39, s 45(4); Corporations Act 2001 (Cth), s 95A, s 588FA, s 588FA(3), s 588FA(6A), s 588FB, s 588FC, s 588FDA, s 588FE, s 588FF(1), s 558G, s 588H, s 588M, s 588V, s 588V(1)(d), s 588W, s 588X, s 588Y, s 588Y(2); Evidence Act 1906 (WA), s 79C; Rules of the Supreme Court 1971 (WA), O 4 r 3(2), O 12 r 1(2), O 34 r 2; Supreme Court Act 1935 (WA), s 3. Result: Judgment for plaintiff for $1,354,911.85 plus interest. | 12 May 2016 | ||||||
Hurt & Strickland as Liquidators of TSG Projects Pty Ltd (In Liq)
[2016] WASC 140 |
CORPORATIONS LAW - Application for extension of time in which to bring preference claim - Turns on own facts. The plaintiff sought an order under s 588FF(3)(b) of the Corporations Act 2001 (Cth) (the Act) extending time within which to commence proceedings under s 588FF of the Act. Result: Application granted. | 5 May 2016 | ||||||
In the matter of Kevin Jacobsen Pty Limited (in liquidation) [2016]
NSWSC 538
|
CORPORATIONS — Winding up — Liquidators — Deed of assignment — Application for approval of deed of assignment under s 477(2B) of the Corporations Act 2001 (Cth) – where liquidators by way of deed assigned certain causes of action of company on basis that assignee would pay a percentage of recoveries upon successful litigation to the company – where there were no other alternatives available to liquidators that offered prospects of return to creditors – whether the Court should approve entry into deed – whether the Court should assess assignability of causes of action before granting approval – whether the Court should refuse approval given insufficiency of evidence as to assignee’s ability to prosecute proceedings to completion – whether assignment will result in vexatious and improper litigation – whether liquidators should have assessed merits of relevant claims prior to entry into deed in circumstances of unfunded liquidation – whether the Court should give approval nunc pro tunc where liquidators failed to obtain approval prior to entry into deed – whether leave should be granted under s 477(2B) of the Corporations Act 2001 (Cth) | 29 April 2016 | ||||||
Golden Heritage Golf Pty Ltd (in liq) (Receivers & Managers Appointed) & Ors v Sun & Ors [2016] VSC 167 | CORPORATIONS – Winding up – Relief under Corporations Act 2001 (Cth), s 588FE and s 588FF – Unreasonable director–related transactions within s 588FDA – Section 588FDA(1)(c) – Uncommercial transactions within s 588FB – Whether it may be expected that a reasonable person in the company’s circumstances would not have entered into the transaction. | 22 April 2016 | ||||||
ASIC v Planet Platinum and anor (2016) VSC 120 |
CORPORATIONS – Voluntary administration – Administrator – Where
directors appointed administrator – Whether at time of resolution
company insolvent or likely to become so – Whether directors held
requisite genuine opinion as to solvency of company –
Whether voluntary administrator appointed for improper purpose
– Whether curative order should be made – Corporations Act 2001
(Cth) Pt 5.3A, ss 436A, 447A. |
1 April 2016 | ||||||
640 Elizabeth Street Pty Ltd (in liq) & Ors v Maxcon Pty Ltd [2015] VSC 22 | CORPORATIONS Winding up Uncommercial Transaction Whether entry into Deed of Acknowledgment and mortgage was in the circumstances an Uncommercial Transaction – Corporations Act 2001 (Cth) s 588FB. | 20 February 2015 | ||||||
ASIC v Planet Platinum Limited [2015] VSC 682 | CORPORATIONS — Winding up on just and equitable ground — mismanagement and misconduct— Corporations Act 2001 (Cth) s 461(1)(k) — Order made for the winding up of the company. | 1 December 2015 | ||||||
Commissioner of Taxation v Warner (No 2) [2015] FCA 659 |
TAXATION – where Commissioner issued notices to produce documents
under s 264 of the Income Tax Assessment Act 1936 (Cth) and s 353-10
of Sch 1 to the Taxation Administration Act 1953 (Cth) to
liquidators appointed in voluntary windings up – whether liquidators
have no obligation to comply with notice because s 486 of the
Corporations Act 2001 (Cth) as applied by s 511 to voluntary
windings up confers that power on the court – where Commissioner is
empowered to undertake broad enquiries for purpose of administering
tax laws including “fishing expedition” pursuant to s 264 STATUTORY INTERPRETATION – discussion of approaches to statutory construction – whether s 486 applies in the context of a voluntary winding up – whether conflict arises between s 264 and s 353-10, and s 486 – whether such conflict is to be resolved by reading down “person” and “you” to exclude liquidator – whether Commissioner is a “creditor” for the purposes of s 486 – whether s 486 as the more specific provision takes priority over s 264 and s 353-10 - where such a construction would undermine purpose of provisions |
1 July 2015 | ||||||
Commissioner of Taxation v Warner (No 2) [2015] FCA 1281 | COSTS – where Commissioner issued notice to produce documents under s 264 of the Income Tax Assessment Act 1936 (Cth) and s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) to liquidators appointed in creditors’ voluntary liquidations – ....– whether Court ought to exercise discretion to award costs against the liquidators personally – where position of liquidators was more akin to that of liquidators who had instituted proceedings and therefore they should assume the risk – where interests of justice, including interests of creditors, best served by awarding costs against liquidators personally | 20 November 2015 | ||||||
Australian Securities and Investments Commission, in the matter of Sino Australia Oil and Gas Limited (prov liq apptd) v Sino Australia Oil and Gas Limited (prov liq apptd) [2016] FCA 201 | CORPORATIONS – application for company to be wound up on just and equitable ground – where company solvent – whether justifiable lack of confidence in conduct and management of company – s 461(1)(k) of Corporations Act (2001) (Cth) | 4 March 2016 | ||||||
Australian Securities and Investments Commission v Sino Australia Oil and Gas Limited (prov liq apptd) [2016] FCA 42 | BANKRUPTCY AND INSOLVENCY – voluntary administration – appointment of administrators – whether appointment of administrators invalid – whether directors formed genuine opinion as to likely insolvency – whether appointment made for improper purpose | 5 February 2016 | ||||||
Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4 |
TORTS – legal professional negligence – property development –
advice to enter into restructure scheme – whether
advice negligent – whether causative of loss – appeal dismissed. PROCEDURE – whether appellants able to advance new argument on appeal – parties bound by the conduct of their legal representatives. COSTS – offer of compromise – whether court should “otherwise order” in accordance with UCPR r 42.14. |
4 February 2016 | ||||||
Sheahan and Lock (Liquidators); In the Matter of B.C.I. Finances Pty Limited (In Liq) [2015] FCA 1487 |
CORPORATIONS – whether the Court should take steps to review and set
aside orders made by a Registrar that a corporation which
was already in the course of being wound up as a creditor’s
voluntary winding up should be wound up by the Court in insolvency
pursuant to s 459A of the Corporations Act 2001 (Cth) in
circumstances where the entity seeking such review is not a party to
the relevant proceeding and chose not to appear at the hearing when
the Registrar made the impugned orders PRACTICE AND PROCEDURE – whether the Court should join as a party/defendant to liquidators’ proceedings an entity which claims to be a creditor of a corporation in liquidation for the purpose of allowing that claimant to bring an application for review of a Registrar’s order to wind up the same corporation in insolvency pursuant to s 459A of the Corporations Act 2001 (Cth) pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) – whether the Court should undertake such a review pursuant to s 35A(6) of that Act |
22 December 2015 | ||||||
Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation); Commissioner of Taxation v Muller and Dunn as Liquidators of Australian Building Systems Pty Ltd (In Liquidation) [2015] HCA 48 | Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation); Commissioner of Taxation v Muller and Dunn as Liquidators of Australian Building Systems Pty Ltd (In Liquidation). Taxes and duties – Income tax and related legislation – Obligations of agents and trustees – Where liquidators caused company to sell property resulting in a capital gain – Whether retention obligation in s 254(1)(d) of Income Tax Assessment Act 1936 (Cth) arises before assessment – Whether liquidators are trustees of trust estate for the purposes of Div 6 of Pt III of Act. Statutes – Construction – Same or similar phrases within a statute – Whether construction of a phrase in one provision controls construction of the same or similar phrase in another provision – Relevance of context and purpose. Words and phrases – "agent", "answerable as taxpayer", "assessment", "capital gain", "collecting provision", "due", "due and payable", "income, profits or gains", "is or will become due", "owing", "sufficient", "trustee". Income Tax Assessment Act 1936 (Cth), ss 6(1), 254, 255, Pt III, Div 6. Income Tax Assessment Act 1997 (Cth), ss 5-5, 104-10. | 10 December 2015 | ||||||
Bank of Queensland Ltd & Anor v Ross Auto Auctions Pty Ltd (in liq) (Receivers & Managers appointed) & Anor [2015] QSC 347 |
CORPORATIONS – WINDING UP – LIQUIDATORS – REMOVAL – IN VOLUNTARY
WINDING UP – GROUNDS – application to remove the second respondent
as liquidator of the first respondent company – whether there was a
reasonable apprehension of bias on the part of the liquidator
because his independence could be compromised by his
referral relationship with an unsecured creditor of the
company which was providing financial advice regarding its actual or
potential insolvency – it is appropriate to apply the same test for
apprehended bias to the liquidator as that
applicable to the judiciary and administrative decision makers –
where the history of frequent referrals of work by the
insolvency advisors to the liquidator was sufficient to
give him a personal interest in maintaining a good business
relationship with it which could come into conflict with his duty as
a liquidator – where it was accepted that there was a reasonable
apprehension of bias – where a fair-minded observer might apprehend
that the liquidator might not with to put his continued receipt of
income in jeopardy by the performance of his duties – where the
first applicant indicated that if the second respondent was replaced
by the liquidators proposed by the applicants, then it would provide
an undertaking to the court to indemnify those liquidators for their
reasonable remuneration and expenses and pursuing any claim as
warranted and this would provide an advantage in the company’s
pursuit of any claims Corporations Act 2001 (Cth), s 491(1), s 564 Australian Securities and Investments Commission v Franklin (2014) 223 FCR 204; [2014] FCAFC 85, followed Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, applied Firepower Operations Pty Ltd (No 2), Re [2008] FCA 1228, considered |
7 December 2015 | ||||||
Australian Securities and Investments Commission v Midland Hwy Pty Ltd (administrators appointed); in the matter of Midland Hwy Pty Ltd (administrators appointed) [2015] FCA 1360 |
CORPORATIONS – land banking scheme – resolution of creditors to
enter into deed of company arrangement – investors as creditors –
misleading information given to creditors – investigation of
company’s transactions with third parties – missing funds –
lack of commercial morality – public interest – need for full
investigation by a liquidator – need for potential recovery action
by liquidator – report by administrators under s 439A of
the Corporations Act 2001 (Cth) – recommendation by administrators
that company be liquidated – exercise of power under s 447A(1) of
the Act – whether resolution of creditors to be set aside –
relevance of factors under s 445D of the Act in considering whether
the resolution should be set aside prior to the deed being entered
into – creditors’ resolution set aside – winding up order made |
3 December 2015 | ||||||
Scott (Trustee) v Icicek Holdings Pty Limited, in the matter of Icicek Holdings Pty Limited [2015] FCA 1387 | CORPORATIONS – application for correction of register of members of a company. CORPORATIONS – application for winding up of a company on the just and equitable ground Legislation: Bankruptcy Act 1966 (Cth) s 58; Corporations Act 2001 (Cth) ss 9, 109X, 175, 206B, 461, 462, 1072C; Federal Court (Corporations) Rules 2000 (Cth) r 5.6 | 2 December 2015 | ||||||
Rexel Electrical Supplies Pty Ltd v Morton (as liquidator of South East Queensland Machinery Manufacturing and Distribution (Mining No. 1) (in liq)) [2015] QCA 235 |
CORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP –
EFFECT OF WINDING UP ON OTHER TRANSACTIONS – PREFERENCES AND
VOIDABLE TRANSACTIONS – UNFAIR PREFERENCES – where the trial judge
found the applicant to be insolvent – where the applicant engaged in
transactions with a related entity during the ‘relation-back’ period
– where the trial judge concluded that these transactions were an
unfair preference – where the applicant contends the trial judge
erred in concluding that the relevant transactions were an unfair
preference – where the applicant needed leave to appeal because the
amount of the judgment in the District Court was less than the
monetary limit of the Magistrates Court – where the applicant did
not make submissions on this point – whether leave to appeal
the trial judge’s factual finding ought be granted CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – WHAT CONSTITUTES INSOLVENCY – GENERALLY – where the applicant alleged the trial judge had erred in finding the applicant insolvent – where the liquidator gave evidence to the effect that the applicant was insolvent – where there was no evidence contradicting the liquidator – where the balance sheets and profit and loss statements of the applicant did not comply with s 286 of the Corporations Act 2001 (Cth) – where the liquidator did not rely upon unreliable information in those statements – whether the evidence supported a finding of insolvency |
20 November 2015 | ||||||
Hancock, in the matter of Tarleton & Peters Pty Limited (Administrator Appointed) (No 2) [2015] FCA 1232 | CORPORATIONS – application for second extension of convening period under s 439A(6) of the Corporations Act 2001 (Cth) – convening period extended. Legislation: Corporations Act 2001 (Cth), ss 436A, 439A, 447A. | 13 November 2015 | ||||||
In the matter of Octaviar Administration Pty Limited (in liq) [2015] NSWSC 1621 |
CORPORATIONS – winding up – liquidators – special purpose
liquidators – application for advice as to distribution of funds –
funds advanced by general purpose liquidator to special purpose
liquidator to fund litigation – where funds no longer required –
whether funds should be returned to general purpose liquidator –
whether general purpose liquidator disqualified to act as liquidator
under (CTH) Corporations Act 2001, s 532(2)(c)(ii) – where no
opposition to special purpose liquidator retaining funds – payment
of funds under funding deed – whether deed terminated – effect of
deed absent court’s approval under Corporations Act, s 477(2B) –
where arguable that special purpose liquidator entitled to treat
deed as terminated – whether special purpose liquidator justified in
applying for expanded powers to represent Octaviar Ltd’s interests
in respect of claim as creditor of Octaviar Administration – where
pursuing appeal of liquidator’s rejection of proof of debt places
liquidators in position of conflict – where special purpose
liquidator strong candidate to pursue appeal. CORPORATIONS – winding up – liquidators – approval of funding deed entered into by liquidators under Corporations Act 2001, s 477(2B) – whether funding litigation of related company “necessary” for winding up affairs of company under s 477(2)(m) – where some nexus between litigation and benefit in winding up beyond mere commercial return required. |
3 November 2015 | ||||||
ROSS & ANOR AS JOINT & SEVERAL ADMINISTRATORS OF GNC HOMES P/L (ADMIN APPTD) v GNC HOMES P/L (ADMIN APPTD) [2015] SASC 168 | CORPORATIONS - VOLUNTARY ADMINISTRATION - ADMINISTRATOR - APPOINTMENT - BY COMPANY Validity of appointment - indoor management rule - Sections 128 and 129 of the Corporations Act - company prevented from denying validity of appointment of Administrators - Section 447A of Corporations Act - discretion to validate an otherwise invalid appointment. | 23 October 2015 | ||||||
Heesh and Lott, in the matter of QRxPharma Limited (Administrators Appointed) [2015] FCA 1140 | CORPORATIONS – meeting of creditors – directions regarding notification of shareholders who may be creditors of company. Legislation:Corporations Act 2001 (Cth) ss 439A, 447A, 447D, 563A, 600H; Corporations Amendment (Sons of Gwalia) Act 2010 (Cth); Explanatory Memorandum, Corporations Amendment (Sons of Gwalia) Bill 2010. Cases cited:Sons of Gwalia Ltd (subject to deed of company arrangement) v Margaretic (2007) 231 CLR 160; [2007] HCA 1; Strawbridge, in the matter of Retail Adventures Pty Ltd (Administrators Appointed) v Retail Adventures Pty Ltd (Administrators Appointed) (2013) 95 ACSR 121; [2013] FCA 891. | 22 October 2015 | ||||||
Hathway (Liquidator), in the matter of Tightrope Retail Pty Ltd (in liq) v Tripolitis [2015] FCA 1003 | PRACTICE AND PROCEDURE – Federal Court Rules 2011, r 7.33 – orders ancillary to freezing orders – cross-examination of deponents – order made requiring disclosure of assets by way of affidavit – whether leave should be granted to cross-examine deponent | 10 September 2015 | ||||||
Re AsiaPAC Communications Group Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2015] VSC 413 | CORPORATIONS – Insolvency – Application by former administrators for determination of their remuneration pursuant to s 449E(1)(c) of the Corporations Act 2001 (Cth). | 14 August 2015 | ||||||
GEORGE AUBREY LOPEZ (IN HIS CAPACITY AS LIQUIDATOR OF SWAN CONCRETE PRODUCTS PTY LTD (IN LIQ)) -v- HARVEY [2015] WASC 292 |
Practice and procedure - Summary judgment - Whether arguable defence Corporations - Unfair preference - Running account - Whether commercial purpose - Whether continuing business relationship - Calculation of preference during relation-back period |
14 August 2015 | ||||||
In the matter of Ambient Advertising Pty Ltd (in liquidation) [2015] NSWSC 1079 | CORPORATIONS – winding up – creditors’ voluntary winding up – application for appointment of special purpose liquidator – significant creditor presents cogent case for investigation of dealings in period before the creditors’ voluntary winding up – creditor lacks confidence in existing liquidator – creditor willing to fund investigations for special purpose liquidator – held that appointment of special purpose liquidator would be beneficial to the administration of the winding up – court has jurisdiction to appoint – order sought under s 477(2B) granted | 5 August 2015 | ||||||
Weston (Liquidator); In the Matter of 7 Steel Distribution Pty Limited (In Liq) [2015] FCA 742 | CORPORATIONS – whether a secured creditor which has realised its security has a right of subrogation in respect of the priority claims of employees of a corporation in liquidation in circumstances where receivers appointed by that secured creditor over that corporation and its assets paid out those priority claims (as they were bound to do under s 433(3)(c) of the Corporations Act 2001 (Cth)) during the subsistence of the receivership and thus diminished the quantum of the return to the secured creditor after realisation of its security | 21 July 2015 | ||||||
Hancock v Conergy Pty Limited (in liquidation), in the matter of DCM Solar Pty Limited (in liquidation) [2015] FCA 738 |
CORPORATIONS – voidable transactions – insolvent
transactions – whether deed entered into by parties and/or payments
made giving effect to deed constitute unfair preferences CORPORATIONS – leave to proceed against company in liquidation |
21 July 2015 | ||||||
Warwick Keneally as administrator of Australian Blue Mountain International Cultural & Tourist Group Pty Ltd (admin apptd) [2015] NSWSC 937 |
CORPORATIONS – meetings – notice of directors’ meetings – where
directors notified of meeting less than two hours prior to
commencement – where notice of meeting sent by text message –
whether notice reasonable in the circumstances –
whether order under s 1322(4) of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – administrator – where directors appointed administrator – where directors not called to give evidence – where administrator’s evidence sought to establish solvency or likely insolvency – whether directors held requisite genuine opinion as to solvency or likely insolvency under s 436A of the Corporations Act 2001 (Cth). CORPORATIONS – voluntary administration – administrator – where directors appointed administrator for the purpose of assisting with negotiations with another director and shareholder – whether purpose foreign to Pt 5.3A of the Corporations Act 2001 (Cth). |
16 July 2015 | ||||||
Traditional Values Management Limited (In Liquidation) - Application by Andrew Stewart Reed Hewitt as special purpose liquidator [2015] VSC 338 | CORPORATIONS – External administration – Application by special purpose liquidator for determination of his remuneration. | 15 July 2015 | ||||||
Trinick as Liquidator of Forgione Family Group Pty Ltd (in liq), in the matter of Forgione Family Group Pty Ltd (in liq) v Forgione [2015] FCA 642 |
CORPORATIONS – insolvent trading – directors’
liability for insolvent trading - whether a company has failed to
retain financial records for seven (7) years – financial
records of company lost while in possession of a former
director – whether a company is presumed to be insolvent by reason
of failure to retain financial records – proper construction of s
286 and s 588E of the Corporations Act 2001 (Cth) – whether company
was insolvent – whether there were reasonable grounds to suspect
company was insolvent – whether the directors failed to prevent a
company from incurring debts – whether the directors could rely upon
defences under s 588H(2) and s 588H(3) of the Corporations Act –
whether company’s accountant was a person responsible for
providing directors with adequate information about the solvency of
company – whether director acted honestly and ought fairly
to be excused for the contravention of s 588G of the Corporations
Act – whether there should be an inquiry under s 536 of the
Corporations Act into the conduct of the liquidators. |
26 June 2015 | ||||||
Re Calder Park Promotions (In Liquidation) [2015] VSC 285 |
CORPORATIONS – External administration – Examination conducted of
director under section 596A of Corporations Act 2001 (Cth) –
Examinee failed without reasonable excuse to produce documents in
response to summons issued under section 596A or to comply with
orders made by the Court pursuant to section 597(9) of the Act to
produce documents which related to examinable affairs of the company
– Application on behalf of liquidators of company that examinee pay
the costs thrown away by reason of such non-compliance – Application
granted – Court declined to fix such costs pursuant to rule 63.07(2)
of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). |
19 June 2015 | ||||||
Winter Holdings (WA) Pty Ltd [2015] WASC 162 | Corporations - Liquidation of corporate trustee - New trustee appointed - Extent of equitable lien or charge of old trustee - Whether liquidator can sell trust assets - Whether it is just and convenient to appoint a receiver | 11 May 2015 | ||||||
Kijurina (as liquidator of ET Family Pty Limited) v Taouk [2015] FCA 424 | CORPORATIONS – where liquidators of companies seeking orders to recover statutory and/or equitable compensation from director – where use by director of company assets for personal financial benefit – where transfer of company assets by director to spouse pursuant to Binding Financial Agreement under Family Law Act 1975 (Cth) – whether transactions insolvent transactions – whether transactions uncommercial – whether transactions voidable transactions – whether transactions unreasonable director-related transactions – whether breach of statutory and fiduciary director’s duties – whether reasonable person in director’s position would have entered into transactions LEGISLATION - Corporations Act 2001 (Cth) ss 9, 180, 181, 182, 183, 185, 588FB, 588FC, 588FDA, 588FE, 588FF, 1317H, 1324; Federal Court of Australia Act 1976 (Cth) s 51A; Family Law Act 1975 (Cth) s 90C | 8 May 2015 | ||||||
CARATTI -v- BOBAN PTY LTD (ADMINISTRATORS APPOINTED) [No 2] [2015] WASC 139 | Criminal law - Contempt of court for breach of injunction - Elements of contempt - No case to answer submission - Construction of injunction | 8 May 2015 | ||||||
Mansfield, in the matter of GSP Group Pty Ltd (Administrators Appointed) [2015] FCA 409 | CORPORATIONS – application for extension of convening period for second meeting of creditors under s 439A(6) of the Corporations Act 2001 (Cth) – where administrators wish to consider viability of deed of company arrangement – where creditors do not oppose extension – where administrators do not yet have access to complete books and records of company – where possible claim against third parties – where tax debt is disputed convening period extended | 4 May 2015 | ||||||
Gothard, in the matter of Sherwin Iron Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 2) [2015] FCA 401 | CORPORATIONS – application for second extension of convening period under s 439A(6) of the Corporations Act 2001 (Cth) – convening period extended | 1 May 2015 | ||||||
Smith v Boné , in the matter of ACN 002 864 002 Pty Ltd (in liq) (No 2) [2015] FCA 389 |
BANKRUPTCY AND INSOLVENCY – where director caused company to
trade while insolvent – whether declaratory relief ought to be
awarded – amount of pre-judgment interest to be awarded – costs – no
declaration made – interest under s 51A(1) of the Federal Court of
Australia Act 1976 (Cth) not payable on so much of the amount
recoverable under s 588M(2) of the Corporations Act 2001 (Cth) as is
calculated by reference to interest on unpaid tax |
24 April 2015 | ||||||
Featherstone v D J Hambleton as liquidator of Ashala Pty Ltd (in liq) [2015] QCA 43 |
(Parts 3 and 4 only) CORPORATIONS – MANAGEMENT AND ADMINISTRATION – OFFICERS OF CORPORATION – DIRECTOR – WHO IS A DIRECTOR – where, pursuant to a share transfer agreement, the appellant was replaced as the company’s sole director and disposed of all shares in the company – where the company continued to lease, and operate from, premises owned by the appellant’s trust and employed the appellant as an events and training coordinator – where the primary judge found that the appellant continued to control the company and influence the company’s recorded directors after the share transfer agreement – where the primary judge found that the appellant was a de facto director and a shadow director during the relevant period – whether the primary judge erred in finding that the appellant was a director pursuant to s 9(b) of the Corporations Act during the relevant period CORPORATIONS – MANAGEMENT AND ADMINISTRATION – DUTIES AND LIABILITIES OF OFFICERS OF CORPORATION – OFFICERS OF INSOLVENT CORPORATIONS – DUTY TO PREVENT INSOLVENT TRADING – REASONABLE GROUNDS TO SUSPECT COMPANY IS OR WOULD BECOME INSOLVENT – where the primary judge found that the appellant was a de facto director and a shadow director during the relevant period – where the company had few staff and operated from a single location – where the primary judge found that the appellant was aware of reasonable grounds to suspect the company was insolvent and breached his duty as a director of the company to prevent insolvent trading by the company pursuant to s 588G of the Corporations Act – where the primary judge held that the appellant was liable for $198,151.41 (with interest) for insolvent trading pursuant to s 588M of the Corporations Act – whether the primary judge erred in finding that there were reasonable grounds for suspecting that the company was insolvent – whether the primary judge erred in finding that the appellant was aware of such reasonable grounds – whether a reasonable person in the appellant’s position would have been aware of such reasonable grounds. |
1 April 2015 | ||||||
Smith v Boné, in the matter of ACN 002 864 002 Pty Ltd (in liq) [2015] FCA 319 | BANKRUPTCY AND INSOLVENCY – whether director caused company to trade while insolvent – whether reasonable grounds for suspecting company was insolvent – whether director failed to prevent company from incurring debts when aware of reasonable grounds to suspect company was insolvent – whether reasonable person in director’s position would have been aware of reasonable grounds for suspecting company was insolvent – where company made payment arrangements to repay tax debts – whether director acted honestly and ought fairly to be excused for contravention of civil penalty provision or breach of duty – amount of recoverable compensation – whether director entitled to set off – whether preferential payment made – Corporations Act 2001 (Cth), ss 588M, 588FF, 1317S, 1318 | 7 April 2015 | ||||||
Warner, in the matter of GTL Tradeup Pty Ltd (in liq) [2015] FCA 323 | CORPORATIONS – external administration – whether moneys subject to statutory trust pursuant to s 981H of the Corporations Act 2001 (Cth) – whether moneys held in extant bank accounts should be deposited in the statutory trust account – application pursuant to ss 479 and/or 511 of the Corporations Act 2001 (Cth), or alternatively s 4(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and s 63 of the Trustee Act 1925 (NSW) – whether liquidator justified in proceeding with the administration on the basis that reg 7.8.03 of the Corporations Regulations 2001 (Cth) applies to the distribution of the statutory trust account – whether liquidator entitled to an indemnity out of the moneys in the statutory trust account for remuneration – whether liquidator entitled to be indemnified for the costs of the application out of the statutory trust account | 9 April 2015 | ||||||
Re Gunns Plantations Limited (In Liq) (Receivers & Managers Appointed) [2015] VSC 102 | CORPORATIONS – Application by liquidators managed investment schemes for directions pursuant to s 511 of the Corporations Act 2001 (Cth) – Liquidators remuneration, costs and expenses – Directions sought under s 50 of the Evidence Act 2008 – Whether remuneration, costs and expenses reasonable and proportionate to services undertaken. | 20 March 2015 | ||||||
Melbourne Co-Operative Book Shop Limited [ 2015] VSC 69 | LIQUIDATION – Approval of liquidator’s
remuneration and expenses – Corporations Act 2001 (Cth) s
473(3)(b)(ii). LIQUIDATION – Surplus of funds available for distribution – Rules fail to provide for distribution of surplus as required by the Co-Operatives Act 1996 (Vic) – Surplus funds distributed to RMIT University for the purpose of providing scholarships – Power of the Court under Corporations Act 2001 (Cth) ss 479(3), 488. |
6 March 2015 | ||||||
Roberts v A1 Scaffold Group Pty Ltd & Ors [2015] FCCA 422 |
INDUSTRIAL LAW – Application in a Case for default judgment –
alleged contraventions of
Fair Work Act 2009 (Cth) – default judgment made.
(Employment in phoenix companies) |
27 February 2015 | ||||||
Promoseven Pty Ltd v Markey, in the matter of Bluechip Development Corporation (Cairns) Pty Ltd (in Liquidation) (Receivers and Managers Appointed) [2015] FCAFC 12 | CORPORATIONS LAW – Insolvency – Secured debts – Appeal from rejection of proof of debt – Where liquidators directed to consider whether debts secured – Where claim that debts secured by mortgage – Where mortgage expressed to secure “agreements” between joint venture vehicle and each joint venturer – Whether advances to joint venture vehicle, allegedly made pursuant to joint venture agreement, “agreements”. | 13 February 2015 | ||||||
RE PNP PACIFIC PTY LTD; EX PARTE STRICKLAND & HURT as Liquidators of PNP PACIFIC PTY LTD [2015] WASC 49 | CORPORATIONS LAW - Liquidation - Application for approval of remuneration - Turns on own facts - Section 449E(7) | 11 February 2015 | ||||||
Lavin v Toppi [2015] HCA 4 |
Contribution – Requirement of coordinate liabilities – Where
appellants and first and second respondents were co-sureties of
guaranteed debt – Where first and second respondents paid creditor
disproportionate amount of guaranteed debt – Where creditor gave
appellants covenant not to sue – Whether first and second
respondents entitled to contribution from appellants – Whether
appellants and first and second respondents shared coordinate
liabilities despite creditor's covenant not to sue. Words and phrases – "contribution", "contribution in equity", "coordinate liabilities", "covenant not to sue", "of the same nature and to the same extent". |
11 February 2015 | ||||||
Oswal, in the matter of Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Carson, McEvoy and Theobald (Receivers and Managers) (No 6) [2014] FCA 1435 | CORPORATIONS – inquiry into the conduct of receivers and managers – whether statement of proposed relief sought relief which was unavailable – whether application needed to be made to expand the scope of the inquiry – whether allegations made in the statement of facts and contentions went beyond the scope of the inquiry as ordered. | 24 December 2014 | ||||||
Oswal,in the matter of Burrup Fertilisers Pty Ltd (Receivers and Managers Appointed) v Carson, McEvoy and Theobald (Receivers and Managers) (No 3) [2013] FCA 357 | CORPORATIONS – application for an inquiry into the conduct of receivers and managers of the assets and undertaking of a corporation based in Western Australia – s 423 of the Corporations Act 2001 (Cth) – whether the conduct complained of was such as would be liable to attract disciplinary sanctions – whether the conduct complained of gave rise to matters of factual and legal complexity so as to render it inappropriate to order an inquiry – whether it was appropriate to order an inquiry in respect of matters which were the subject of existing court proceedings - the receivers and managers did not have sufficient personnel located in Western Australia to carry out the work involved in the receivership – the receivers and managers used Melbourne based personnel to carry out the work – whether fees and expenses of the receivership were inflated by reason of the use of Melbourne based personnel – whether it was appropriate to order an inquiry into the extent to which fees were charged and expenses incurred by reason that the personnel were based in Melbourne - whether it was appropriate to order an inquiry into the propriety of the conduct of the receivers and managers in accepting the appointment. | 19 April 2013 | ||||||
Viscariello V Macks [2014] SASC 189 |
CORPORATIONS - Voluntary Administration - Administrator - Functions,
Powers, Rights and Liabilities generally CORPORATIONS - Membership, Rights and Remedies - Members' Remedies and Internal Disputes - Proceedings on behalf of Company by Member CORPORATIONS - Management and Administration - Duties and Liabilities of Officers of Corporation - Fiduciary and Related Statutory Duties - of Care, Skill and Diligence TORTS - Negligence - Essentials of Action for Negligence - Duty of Care - Special Relationships and Duties - Professional Persons TRADE AND COMMERCE - Competition, Fair Trading and Consumer Protection Legislation - Consumer Protection - Misleading or Deceptive Conduct or False Representations |
9 December 2014 | ||||||
Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 | INCOME TAX – Section 254(1) of Income Tax Assessment Act 1936 (Cth) (“1936 Act”) – company in liquidation – liquidators deemed to be trustees by definition in s 6(1) of the 1936 Act – sale of land by company giving rise to capital gain – whether s 254(1)(d) obliges liquidators to retain from proceeds of sale an amount sufficient to pay the tax to be assessed in respect of the sale of the property prior to the issue of an assessment or whether the obligation to retain only arises after the issue of an assessment | 8 October 2014 | ||||||
Allco Funds Management Limited (Receivers and Managers Appointed) (In Liquidation) -v- Trust Company (RE Services) Limited (in its capacity as responsible entity and trustee of the Australian Wholesale Property Fund) [2014] NSWSC 1251 | EQUITY - COMPANIES - Fiduciary duty of directors to avoid conflicts of interest - Corporations Act 2001 (Cth) ss 181, 187 and 601FD - obligation of directors to act bona fide in the best interests of the company for a proper purpose and not improperly to use their position to gain an advantage for another person - UNCONSCIONABLE CONDUCT - Australian Securities and Investments Commission 2001 (Cth) ss 12CA and 12CB - where plaintiff held units in a registered managed investment scheme - where two of its directors were also directors of the responsible entity of the scheme - where both were subsidiaries of the same holding company - where those directors committed the plaintiff to agreements with the responsible entity which converted its equity into a loan with a fixed repayment date and then committed the plaintiff to an amending agreement which removed the fixed repayment date - whether the directors acted in a situation where their duties to both entities were in conflict - whether the directors acted bona fide in the best interests of the plaintiff and for a proper purpose - whether the responsible entity has acted and continues to act unconscionably by treating the plaintiff as a bare lender rather than an equity holder - REMEDIES - plaintiff seeks rescission of the amending agreement only - HELD - the directors were in a position of conflict - the transactions were not bona fide in the best interests of the plaintiff or for a proper purpose and they improperly used their positions to gain an advantage for another person - plaintiff entitled to rescission of the amending agreement but only on condition that the original loan agreement is also rescinded - HELD - unconscionable conduct as alleged not established | 11 September 2014 | ||||||
Roderick Mackay Sutherland in Trustee of the Property of Kerrie Nisic aka Kerrie Tsaprounis a Bankrupt v Eugina Tsaprounis [2014] NSWSC 1255 | REAL PROPERTY - Co-owners - Statutory power of sale - Application by bankruptcy trustees of one co-owner - Whether bankruptcy trustees ought be appointed as trustees of sale - whether costs of trustess relevant when considering the appointment of a trustee in bankruptcy as trustee for sale - whether mortgagee ought be notified | 9 September 2014 | ||||||
Re Great Southern Managers Australia Ltd (In Liq); Ex Parte Martin Bruce Jones, Darren Gordon Weaver and James Henry Stewart (in their capacity as Liquidators of Great Southern Managers Australia Ltd (In Liq)) [2014] WASC 312 | Corporations law - Winding up - Application by liquidators for approval of entry into settlement deed - Application for approval where obligations under settlement deed to be performed more than 3 months after agreement entered into - Principles to be applied. | 5 September 2014 | ||||||
ARCABI PTY LTD (Receivers & Managers Appointed) (in liq); EX PARTE THEOBALD & HERBERT in their capacities as Receivers & Managers of ARCABI PTY LTD (Receivers & Managers Appointed) (in liq) [2014] WASC 310 | Corporations law - Directions sought by receivers in relation to goods held by corporation - Operation of Personal Property Securities Act 2009 (Cth) - Items held by corporation on varying basis | 4 September 2014 | ||||||
Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936 | EVIDENCE – legal professional privilege – advice privilege – dominant purpose of giving or obtaining legal advice or the provision of legal services – whether legal advice provided to individual in personal capacity or in capacity as director of company – onus of proving claim for privilege – whether onus of proving privilege discharged | 28 August 2014 | ||||||
Re Gunns Plantations Limited (In Liquidation) (Receivers & Managers Appointed) (No 4) [2014] VSC 369 | CORPORATIONS — Managed Investment Scheme — Application made under s 511 of the Corporations Act 2001 (Cth) for direction that liquidators are justified in terminating grower rights — Joint sale process agreed with receivers — Ex ante agreement for the allocation of proceeds between liquidators and receivers — Attempt by growers to review and impugn allocation agreement — Allegation that liquidators had breached duty under ss 601FC(1) and 601FD(1) of the Corporations Act 2001 (Cth) — Nature of proceeding — Breach not established. | 11 August 2014 | ||||||
Gothard, in the matter of Sherwin Iron Limited (Administrators Appointed) (Receivers and Managers Appointed) [2014] FCA 826 | CORPORATIONS – application for extension of convening period under s 439A(6) of the Corporations Act 2001 (Cth) | 5 August 2014 | ||||||
Canadian Solar v ACN 138 535 832 Pty Ltd, In the Matter of ACN 138 535 832 Pty Ltd (Subject to a Deed of Company Arrangement) [2014] FCA 783 | CORPORATIONS – Deed of Company Arrangement (DOCA) terminated by the Court under s 445D of the Corporations Act 2001 (Cth) – Consent of parties to termination of DOCA relevant but not determinative – Where contraventions of the DOCA established – Loss of opportunity to investigate and pursue potentially voidable transactions – Where evidence of secret deals with some creditors to obtain approval of the DOCA – Whether Court should appoint liquidators – Where doubt exists over validity of appointment of voluntary liquidators – Factors relevant to determining who Court should appoint as liquidator – Whether conflict of interest by reason of potential appointees’ interest in recovering professional fees – Termination of voluntary winding up | 29 July 2014 | ||||||
Saker, in the matter of Great Southern Limited [2014] FCA 771 | INSOLVENCY – conduct of liquidators – liquidators sought directions as to whether the liquidators were bound to hold certain funds on trust and how they should be applied in the course of the winding up – no trust obligation existed – liquidators bound by s 561 of the Corporations Act 2001 (Cth) - funds to be applied in the order of priority established by s 556 of the Corporations Act 2001 (Cth) | 24 July 2014 | ||||||
In the matter of CB Constructions (NSW) Pty Ltd [ 2014] NSWSC 913 | CORPORATIONS - winding up - remuneration of provisional liquidator - where provisional liquidator made inconsistent claims for amount of remuneration - whether provisional liquidator has established entitlement to remuneration. | 26 February 2014 | ||||||
Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 | CORPORATIONS - insolvency - winding up - appeal from decision refusing application to remove liquidators - whether judge erred in statement of test for apprehension of bias - whether apprehension of bias arises in circumstances including liquidators needing to investigate transactions involving a corporate group with whom the liquidators have a referral relationship. CORPORATIONS - insolvency - voluntary administration - appeal from decision refusing application for declarations that administrators contravened s 436DA of the Corporations Act 2001 (Cth). | 18 July 2014 | ||||||
In the matter of Appleyard Capital Pty Limited [2014] NSWSC 829; 123 Sweden AB v Appleyard Capital Pty Limited [ 2014] NSWSC 782 | Catchwords: CORPORATIONS - charges, debentures and other borrowings - security interests - registration - extension of time - where doubt as to solvency - relevance of interest of unsecured creditors - whether extension should be granted Legislation Cited: (CTH) Corporations Act 2001, s 588FL, s 588FM | 12 June 2014 | ||||||
LM Investment Management Limited (in liq) v Bruce & Ors [2014] QCA
136 Supreme Court of Queensland - Court of Appeal |
CORPORATIONS – MANAGED INVESTMENTS – WINDING UP – where the
appellant is the responsible entity of the LM First Mortgage Income
Fund (“the Fund”) – where the primary judge concluded it was
necessary to appoint a person independent of the appellant to take
responsibility for ensuring the Fund is wound up in accordance with
its Constitution pursuant to s 601NF(1) of the Corporations Act 2001
(Cth) (“the Act”) – where the primary judge made that appointment
upon finding that given the complexity of the winding up, the
administrators of the appellant (“the administrators”) would not act
properly in the interests of members in identifying and dealing with
potential issues of conflict – where the
primary judge found the appellants had conducted the litigation in a
partisan and combative manner, and the administrators had preferred
their own interests to those of the Fund – whether those
findings and other supporting findings were reasonably open on the
evidence – whether setting aside any of those findings vitiates the
primary judge’s ultimate conclusions CORPORATIONS – MANAGED INVESTMENTS – RESPONSIBLE ENTITY – where the primary judge found the administrators had acted in a way inconsistent with those owing duties as responsible entity and trustee under the Act, conducted the litigation in a partisan and combative manner, and had preferred their own interests to the interests of the Fund – where the appellant argues those conclusions and supporting findings were not open because they were not put to appropriate witnesses in cross-examination or the appellant was not otherwise given adequate notice to meet those imputations – whether the administrators were cross-examined about those imputations or were otherwise given sufficient notice – whether there was a breach of the rule in Browne v Dunn so as to require those findings be set aside – whether setting aside any of those findings vitiates the primary judge’s ultimate conclusions CORPORATIONS – MANAGED INVESTMENTS – WINDING UP – where the primary judge found that if the administrators were permitted to wind up the Fund, there would be a real potential for conflicts of interest to arise – where the second respondent argued there would arise actual and not merely potential conflicts of interest – whether the primary judge erred on that basis – where the primary judge concluded that the real potential for conflicts of interest to arise did not of itself make it “necessary” to appoint an independent person to wind up the Fund under s 601NF(1) of the Act – where the second respondent argued the primary judge misconstrued s 601NF(1) and that those potential conflicts did make it “necessary” to appoint an independent person – whether the primary judge erred on those bases |
6 June 2014 | ||||||
IMO Calder Park Promotions Pty Ltd (in liquidation) Examinations [2014] VSC 254 | CORPORATIONS ACT – Examination summonses – Application to set aside – Application to inspect affidavit in support of application for the filing of examination summonses – Collateral or ulterior purpose – Whether the contended for collateral or ulterior purpose was a purpose of the liquidators or the predominant purpose of the liquidators or a by-product of the examinations — Onus of proof — Conflict of interest — Proceedings in the Family Court involving examinees and the funder of the liquidators. (Bob Jane) | 30 May 2014 | ||||||
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148 | CORPORATIONS - insolvency - voidable transactions - Corporations Act 2001, s 588FF - whether shelf orders are valid - extension of time for bringing claims under s 588FE. STATUTORY INTERPRETATION - principles - relationship between subsections - purposive approach - conflicting purposes - provision conferring power on court. COURTS AND JUDICIAL SYSTEM - precedent - departure from previous decision - intermediate appellate courts - applicable test - whether previous decision plainly wrong. PROCEDURE - Uniform Civil Procedure Rules, r 36.16(2)(b) - whether the power to set aside an order made in the absence of a person is discretionary. | 14 May 2014 | ||||||
Sutherland v Jatkar [2014] FCA 532 | BANKRUPTCY – meaning of ‘provable debt’ – whether claim for contribution under s 23B of the Wrongs Act 1958 (Vic) a provable debt – whether claim a contingent debt or liability – whether claim a demand in the nature of unliquidated damages arising otherwise than by reason of contract, promise or breach of trust – whether claim within exclusive jurisdiction of Federal Court and Federal Circuit Court – whether claim an abuse of process. | 22 May 2014 | ||||||
Stewart v Atco Contols Pty Ltd (in Liquidation) [2014] HCA15 |
Equity – Equitable charges and liens – Liquidator's equitable lien
for costs, expenses and remuneration – Where asset realised
by liquidator's efforts in pursuing litigation – Where
litigation involved unsuccessful attack on interest of secured
creditor – Where liquidator acting with propriety and in course of
his duties – Whether liquidator entitled to equitable lien over
asset in priority to secured creditor.
Words and phrases – "come in to the winding up", "costs and expenses
of realisation", "equitable lien", "Universal
Distributing principle". |
7 May 2014 | ||||||
Relfo v Vasani [2014] EWCA Civ 360 | Decision of the England and Wales Court of Appeal (Civil Division) re liquidators’ recovery of laundered monies through tracing. In Relfo v Vasani [2014] EWCA Civ 360, it was held that where monies are improperly paid out of a company, they may be traced through various accounts to the end recipient, even if each of the stages in the laundering of the money cannot be identified. It is also likely to become a major authority on unjust enrichment deciding that indirect recipient of funds would be liable to give restitution where there is a sufficient degree of connection between the payment away and the receipt. | 28 March 2014 | ||||||
Renovation Boys Pty Ltd (admins apptd) [2014] NSWSC 340 |
CORPORATIONS - voluntary administration -
application by administrators for directions under Corporations Act
2001 (Cth) s 447D - whether matter attracts Court's jurisdiction to
give directions - where three categories of company stock items are
sought to be distributed or disposed - where there existed a
retention of title clause in relevant terms of sale
agreement - whether title in relevant categories of stocks had
passed to purchaser upon allocation of stock - whether a relevant
category of goods should be sold and distributed pari passu -
whether purchasers can take relevant stock free of security
interests registered by suppliers - whether administrators
are entitled to exercise a equitable lien in respect of
identification, allocation and distribution of relevant stock to
purchasers - whether an equitable lien entitles the
administrators to impose a levy upon purchasers to whom
title in relevant stock is made available - whether administrators
are justified in providing notification to affected parties -
whether administrators justified in disposing of any
abandoned stock. |
25 March 2014 | ||||||
Vasudevan & Ors v Becon Const & Anor [2014] VSCA 14 |
|
24 February 2014 | ||||||
Central Cleaning Supplies (Aust) Pty Ltd v Elkerton [2014] VSC 61 |
CORPORATIONS — Appeal from liquidators’ decision to reject claim for the return of cleaning equipment subject to retention of title — Transitional security agreements under Personal Property Securities Act 2009 (Cth) — Transitional provisions applying if transitional security agreement in force immediately before 30 January 2012 and provides for security interest — Credit application completed by purchaser before 30 January 2012 — Credit application included that supply of goods governed by Standard Terms and Conditions — Invoices included Condition of Sale that title in goods ‘subject of this sale’ remain property of supplier — Condition of Sale not incorporated into credit application but incorporated into each separate contract of supply — Separate contracts after 30 January 2012 with result that transitional provisions do not apply — Decision of liquidators confirmed — Personal Property Securities Act 2009 (Cth) ss 322(1), 307 and 308(b). |
7 March 2014 | ||||||
Australian Securities and Investments Commission v Dunner [2013] FCA 872 |
CORPORATIONS – Corporations Act 2001 (Cth), ss 423, 499, 536 – Duties of liquidator – Duties of receiver – Court inquiry into defendant’s conduct as liquidator and receiver – Failure by defendant to investigate circumstances of companies to which he was appointed – Drawing remuneration without approval or adequate supporting documentation – Inaccurate reporting to ASIC and creditors regarding external administrations – Repayment of remuneration drawn without approval – Unfitness to remain registered as liquidator – Duration of prohibition order |
30 August 2013 | ||||||
COTE -v- DEVINE [2013] WASC 79 |
CORPORATIONS - Application to restrain conduct of second meeting of
creditors - Notice of meeting - Whether administrators were
impartial and independent - Turns on own facts. MATTER - Aurora
Balance Living Properties Pty Ltd (Administrators Appointed) and
Aurora Balanced Living Pty Ltd (Administrators Appointed) |
13 March 2013 | ||||||
Carson, in the matter of Hastie Group Limited (No 3) [2012] FCA 719
|
CORPORATIONS – application for directions under s 447D of the
Corporations Act 2001 - permission to dispose of certain plant
and equipment held at several locations - inadequate books and
records - 995 registrations noted against the companies in the
Personal Property Securities Register (PPSR).
|
5 July 2012 | ||||||
Carson, in the matter of Hastie Group Limited [2012] FCA 626 |
CORPORATIONS - application for extension of times under s.447A of the Corporations Act 2001. | 29 May 2012 | ||||||
Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120
|
CORPORATIONS - winding up -
creditors voluntary winding up - remuneration of liquidator - where
process for determination by committee of inspection breaks down -
question for court to determine as to quantum of remuneration -
delineation of functions attracting remuneration - whether certain
activities are within those functions - whether "benefit" test
applies - whether "but for" test applies - sufficiency of
particulars given to allow court to assess work done - possibility
of duplication - onus on liquidator to show proper quantum - onus
not discharged - directions for further progress of application. |
1 October 2010 | ||||||
CORPORATIONS - insolvency – bank accounts of liquidators - consideration of an application for a declaration concerning the construction of Regulation 5.6.06 and Regulation 5.6.09 of the Corporations Regulations 2001 (Cth) – consideration of whether an order ought to be made under s 1322(4)(c) of the Corporations Act 2001 (Cth) |
30 August 2010 | |||||||
Onefone Australia Pty Limited v One.Tel Limited [2010] NSWSC 401 |
CORPORATIONS - winding up -
creditors voluntary winding up - remuneration of liquidator - power
of committee of inspection to fix remuneration - where committee
does not act - procedures of committee - requirement that committee
act through meeting - where meeting made no decision and supposedly
"adjourned" while liquidator sought individual approvals of
remuneration from committee members - power to adjourn "from time to
time" - no permitted procedure contemplates what was actually done -
individual approvals did not in any event "fix" remuneration - no
legal basis for payment received by liquidator - application to
validate actions - where ASIC conducting "review" of liquidator's
remuneration - where application for order removing liquidator
pending - ASIC to be given notice of proceedings - proceedings
adjourned. |
7 May 2010 | ||||||
International Cat Manufacturing Pty Ltd & Anor v Rodrick & Ors [2010] QSC 30 |
CORPORATIONS – WINDING UP
– WINDING UP IN INSOLVENCY – where liquidators made claims to avoid
insolvent transactions and to recover losses from insolvent trading
– whether respondent was a de facto director
|
12 February 2010 |
||||||
CORPORATIONS – application under Corporations Act s 500(2) for leave of the court to continue proceedings against company in voluntary liquidation – liquidation a creditors’ voluntary winding-up and not a members’ voluntary winding-up – no appearance by liquidators – indication that liquidators may have purportedly resigned and requested deregistration of company before company’s affairs fully wound up – troubling aspects of winding-up might warrant inquiry by the court under s 536(1)(a) or s 536(3) – notice to liquidators and former directors to make submissions as to whether court should hold such inquiries.
|
8 February 2010 |
|||||||
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant DEAN ROYSTON McVEIGH Respondent Companies Auditors and Liquidators Disciplinary Board |
This is a case brought by ASIC against Mr Dean McVeigh, a registered liquidator who practises under the name Foremans Business Advisors at Sandringham in Melbourne. ASIC has applied to the Board for Mr McVeigh to be dealt with under s1292 of the Corporations Act 2001. In its application, ASIC contends that in respect of each of ten companies of which Mr McVeigh was appointed voluntary administrator or liquidator or both, Mr McVeigh has failed to carry out or perform his duties adequately and properly. |
19 January 2010 |
||||||
|
|
|
||||||