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COURT JUDGMENTS - corporations

Last updated 31/5/2017

 

 

CITATION (& link to judgment)


 

CATCHWORDS AND LEGISLATION


DELIVERED


 
  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  
  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.
SALE OF GOODS - passing of property - where purchasers entered into terms of sale agreements with company - where company initially allocated groups of stock by description to group of purchasers and not by individual contracts - whether relevant goods can be properly characterised as 'unascertained' or 'future' goods - whether relevant goods were in a 'deliverable state' - whether there had been an unconditional appropriation of relevant goods.

25 March 2014  
  Vasudevan & Ors v Becon Const & Anor [2014] VSCA 14  


CORPORATIONS – Winding up in insolvency – Unreasonable director related transaction – Whether agreement by company to assume joint liability for obligations owed by director to third party and to grant mortgage to secure performance of assumed liability constituted unreasonable director related transaction within meaning of s 588FDA of Corporations Act 2001 (Cth) – Whether appropriate to avoid transaction ab initioZiade Investments Pty Ltd v Welcome Homes Real Estate Pty Ltd & Anor (2006) 57 ACSR 693, distinguished;  Re Great Wall Resources Pty Ltd (in liq) [2013] NSWSC 354, doubted and not followedCorporations Act 2001 (Cth) ss 9, 588F, 588FA, 588FB, 588FD, 588FDA, 588FE, 588FG.

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

CORPORATIONS – WINDING UP – WINDING UP IN INSOLVENCY – where liquidators made claims to avoid insolvent transactions and to recover losses from insolvent trading – whether arguable case of insolvency

 

12 February 2010

 
 

Little v Edwards Concreting Pty Ltd [2010] NSWSC 57

 

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

 
 

Mentha, in the matter of The Griffin Coal Mining Company Pty Ltd (administrators appointed)
(ACN 008 667 285) [2010] FCA 30

 

 

CORPORATIONS - liquidation - extension of time for convening second creditors’ meeting pursuant to s 439A(6) of the Corporations Act 2001 (Cth) - reasons justifying extension - complex liquidation - balancing test - position of creditors - extension granted

2 February 2010