Complied by Michael Ennis. Michael developed an interest in insolvency case law, while a Deputy Registrar in Bankruptcy at the Federal Court of Australia and while undertaking various roles at the Insolvency Trustee Service Australia (ITSA). He has maintained this interest since retiring. If you would like to receive the Insolvency Decisions schedule direct, advise Michael of additional decisions, or share your observations, you may contact Michael direct on rmci53mje@spin.net.au.
Bankruptcy Act – following Date of Bankruptcy
Halsted (Bankrupt) v The Official Trustee in Bankruptcy, in the matter of Halsted (Bankrupt) (No 2) [2012] FCA 66 (9 February 2012) COSTS – loan contract – valid equitable charge in favour of respondent – application of contra proferentum rule – order for costs – whether applicant should be ordered to pay costs on a party and party basis or indemnity basis – construction of contractual arrangement – clause insufficiently explicit to require costs be paid on indemnity basis COSTS – imprudent or unreasonable refusal of an offer of compromise by applicant – whether indemnity costs to be ordered – indemnity costs ordered to be paid from date of expiry of reasonable offer of compromise http://www.austlii.edu.au/au/cases/cth/FCA/2012/66.html
Good to see these decisions still go back to the Court to provide guidance to Trustees = Pearce (Trustee) v Mulhern (Bankrupt) (No 4) [2012] FCA 54 (2 February 2012) BANKRUPTCY – application for return of passport – whether just and equitable to do so – where respondent bankrupt had complied with obligations under the Bankruptcy Act 1966 (Cth) http://www.austlii.edu.au/au/cases/cth/FCA/2012/54.html
Sresbodan & Sresbodan and Ors (No. 2) [2011] FamCAFC 240 (16 December 2011)FAMILY LAW ─ APPEAL ─ Application for leave to appeal ─ Appeal against order of Family Court Judge joining the third and fourth respondents (“the solicitors”) as parties to the proceedings ─ Where the solicitors lodged a proof of debt with the husband’s bankruptcy trustees ─ Where the solicitors lodged an appeal in the Federal Court against the trustees decision regarding the quantum of their entitlement ─ Where beyond what is recorded in the trial Judge’s reasons for judgment, this Court is unable to know on what basis the solicitors sought leave to intervene in the proceedings, and on what basis the husband opposed such leave being granted ─ Where the basis upon which the solicitors sought to remain interveners in the Family Court proceedings was squarely submitted to relate to “the mechanics of getting paid if and when the quantum of our debt is determined” ─ Where the Court was not aware of any suggestion, nor did they suggest that it would be appropriate in any event,
for the dispute between the solicitors and the trustees with respect to the quantum of the husband’s indebtedness to the solicitors to be determined other than by the Federal Court, which has been seized of the dispute for months ─ Where it was concluded that, absent consideration of section 58(3) of the Bankruptcy Act 1966 (Cth), the discretion to grant leave for the solicitors to intervene miscarried, in that the trial Judge failed to have regard to a matter which was material to the exercise of his Honour’s discretion ─ Leave to Appeal granted ─ Appeal allowed FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was common ground that, if the application was granted and the appeal allowed, an order for costs against the solicitors was appropriate ─ That the solicitors are to pay the husband’s costs of and incidental to the application for leave to appeal and appeal as agreed or assessed on a party/party basis http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/240.html
Sresbodan & Sresbodan and Ors [2011] FamCAFC 239 (16 December 2011) FAMILY LAW ─ APPEAL ─ Application in an appeal – Where to adjourn the husband’s application for leave to appeal would have only increased the costs of all parties, with no prospect of the application having greater utility on any later occasion – Adjournment of the application for leave to appeal refused FAMILY LAW ─ APPEAL ─ Application for leave to appeal against interlocutory order of Family Court Judge ─ Property settlement ─ Where the trial Judge made orders for the sale of a property and that on completion of the sale the proceeds be disbursed to various creditors ─ Not established that the trial Judge was seized of an application pursuant to section 116(2) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) or that his Honour erred in not applying “correctly or otherwise” the provisions of that section ─ The Court was not referred to any evidence or submissions before the trial Judge asserting that the husband’s creditors ought not to be paid out of the proceeds of the sale of a property ─ Not established that the trial Judge erroneously applied the provisions of section 58 of the Bankruptcy Act on the evidence before him in light of the competing applications which were before him ─ Application for leave to appeal dismissed FAMILY LAW ─ APPEAL ─ COURTS AND JUDGES ─ Disqualification ─ Court was not referred to any application before the trial Judge to disqualify himself ─ Not identified or demonstrated that the trial Judge denied the parties natural justice http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/239.html
Corporations – pre-appointment
Armadale Retail Investments Ptd Ltd & Ors v Owenlaw Mortgage Managers Ltd [2012] VSC 9 (25 January 2012) CORPORATIONS — Appeal against decision of an Associate Justice — Rehearing de novo on the merits — Statutory demand— When statutory demand served — Service by post — Whether the deemed service provisions in the Acts Interpretation Act 1901 (Cth) and Evidence Act 2008 (Vic) rebutted by evidence — Corporations Act 2001 (Cth) ss 109X, 459G, Acts Interpretation Act 1901 (Cth) s 29, Evidence Act 2008 (Vic) s 160 http://www.austlii.edu.au/au/cases/vic/VSC/2012/9.html
Corporations – post appointment
A small but growing number of Corporation / Family Law decisions = C Pty Ltd and Ors & PGW as Liquidator of S Pty Ltd (In Liq) [2011] FamCAFC 231 (9 December 2011) FAMILY LAW – APPLICATIONS FOR LEAVE TO APPEAL – where two applications for leave to appeal were filed – where leave to appeal is required as these are interim financial proceedings – where the basis upon which leave is sought in both applications is essentially the same – where the jurisdiction of the Family Court to hear an application by the Liquidator of S Pty Limited to recover from Mr and Mrs Rand monies that S Pty Limited as guarantor had paid to discharge a loan to National Australia Bank is challenged – where if the Court has the jurisdiction to hear that application it should exercise that jurisdiction – where the exercise of jurisdiction by the Family Court to hear an application by C Pty Limited to reverse the decision by the Liquidator to reject a proof of debt is challenged – where the applicants contend that both applications should be transferred to the Supreme Court of New South Wales – where the issues raised are of importance – leave granted. FAMILY LAW – APPEAL – THE APPEAL BY MR AND MRS RAND – where the appellants argue that the trial judge was in error in finding that the guarantee proceedings were a “matrimonial cause” within s 4(1)(f) of the Family Law Act 1975 (Cth) – where the trial judge found that both the s 79 proceedings and the winding up proceedings were matrimonial causes and the guarantee proceedings were related to them – where there is no doubt that the Family Court has jurisdiction to hear the winding up proceedings pursuant to the power vested in it under s 1337C of the Corporations Act 2001 (Cth) – where the “remoteness” of the guarantee proceedings from the s 79 proceedings is dependent upon the meaning of the phrase “in relation to” in s 4(1)(f) of the Family Law Act 1975 (Cth) – where the necessary connection is established and the trial judge was correct in finding that the guarantee proceedings are a “matrimonial cause” and that the Family Court has jurisdiction to hear the proceedings – where the trial judge erred in holding in the alternative that the guarantee proceedings were a civil matter arising under the Corporations Act 2001 (Cth) and within the jurisdiction of the Family Court – where the guarantee proceedings arise under general law and are not a civil matter arising under the Corporations Act 2001 (Cth) – where the trial judge was correct in holding in the further alternative that the guarantee proceedings were within the Family Court’s accrued jurisdiction – where the winding up proceedings have not been completed and they therefore satisfy the need for there to be a family law claim as part of the justiciable controversy – where the trial judge was correct in exercising his discretion to exercise the jurisdiction – where it is beyond doubt that the trial judge correctly applied the criteria for the exercise of jurisdiction – whether the trial judge erred in concluding that the conduct of the Rands was “wrongful” – where this is a challenge to the trial judge’s findings as to the facts – where there were no oral submissions made by either side in relation to this challenge – where this challenge fails given that it was a challenge to orders 4 and 5 of the trial judge which orders have been complied with – where the trial judge was correct in rejecting the application of Mr and Mrs Rand for security for costs against S Pty Ltd in respect of the guarantee proceedings – where the trial judge was correct in applying s 117 of the Family Law Act 1975 (Cth) instead of s 1335 of the Corporations Act 2001 (Cth) – where the guarantee proceedings are “proceedings” within the meaning of s 117 – where on the basis that s 117 applies the trial judge did not err in taking into account other considerations such as the financial circumstances and conduct of the parties – where no error by the trial judge was found – appeal dismissed. FAMILY LAW – APPEAL – THE APPEAL BY C PTY LIMITED – where the appellant complains that the trial judge erred in dismissing the application to transfer the proof of debt proceedings – where the appellant concedes that in the event that the guarantee proceedings are found to be a matrimonial cause and the Family Court has original jurisdiction to hear those proceedings it is not appropriate to transfer them – where it was found that the guarantee proceedings are within the original jurisdiction of the Family Court – where this appeal becomes “academic” – appeal dismissed. FAMILY LAW – COSTS – where the appellants seek that the respondent pay the costs of and incidental to the appeal and the proceedings before the trial judge – where the respondent sought an order for costs – where both the appellants sought that a regime be put in place for the filing of written submissions on costs and for further evidence to be presented – where the respondent did not oppose this – where a regime as requested was put in place http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/231.html
C Pty Ltd & PGW as Liquidator of S Pty Ltd (In Liq) [2011] FamCAFC 230 (9 December 2011) FAMILY LAW – APPEAL – Application to adduce further evidence – where the application was filed after the hearing was completed and judgment was reserved – where the Court determined to treat the application as an application to re-open the hearing in order to adduce further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) – where the further evidence sought to be adduced was that the wife in the original family law proceedings (not a party to the appeal) had declared herself bankrupt prior to the hearing of the appeal – where the fact of the wife becoming bankrupt was of no relevance to the issue of the exercise of jurisdiction which was the subject of the appeal – where there was no basis to admit the further evidence – application dismissed.
FAMILY LAW – COSTS – where in the event the application was dismissed the respondent sought an order for costs on an indemnity basis, or if not, on a party and party basis – where the dismissal of the application would justify an order for costs being made in favour of the respondent – where the Court was not persuaded that the applicant’s prior knowledge of the wife’s bankruptcy and failure to file an application to adduce further evidence prior to the hearing constituted the necessary exceptional circumstances to award indemnity costs – costs ordered on a party and party basis http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/230.html
Amaca Pty Ltd (under NSW Administered Winding Up) v King [2011] VSCA 447 (22 December 2011) NEGLIGENCE – Occupier’s liability – Asbestos cement sheet manufacturing plant – Duty of care – Known risk of asbestos dust causing mesothelioma – Whether magnitude of risk sufficient to require occupier to take reasonable care to protect occasional visitor from risk – Jury directions – Whether judge erred in directions as to existence and scope of relevant duty – Breach – Causation – Distinction between risk and causation – Motion for judgment non obstante veredicto – Whether judge erred in dismissing application – Whether sufficient evidence of causation to support verdict – Damages – Pain and suffering – Whether amount awarded by jury excessive – Awards previously made in like cases – Appeal dismissed http://www.austlii.edu.au/au/cases/vic/VSCA/2011/447.html
National Australia Bank Ltd & Anor v Horne & Anor (No 2) [2011] VSCA 414 (8 December 2011) COSTS – Substantial success by both sides – No order as to costs http://www.austlii.edu.au/au/cases/vic/VSCA/2011/414.html
Action Cycles Pty Ltd (recs & mgrs apptd) & Ors v Ross & Ors [2011] VSCA 411 (1 December 2011) PRACTICE AND PROCEDURE – Stay pending appeal – Interlocutory appeal – Application for stay of order dissolving interlocutory injunction to restrain receivers from selling mortgaged properties pending hearing and determination of action – Serious question to be tried – Interest – Dispute as to applicable interest rate – Dispute as to date interest payments due for payment – Balance of convenience – Whether material change in circumstances so exceptional as to warrant discharge of injunction – Delay – Whether delay coming to trial caused by respondent – Injunction granted http://www.austlii.edu.au/au/cases/vic/VSCA/2011/411.html
Baker & Ors v Ambridge Investments Pty Ltd (in liq) & Ors (No 2) [2011] VSCA 400 (1 December 2011 COSTS – Application for indemnity costs by successful defendant to appeal – No special circumstances that would justify a departure from the usual order as to costs – Application refused – Costs to be taxed on a party and party basis http://www.austlii.edu.au/au/cases/vic/VSCA/2011/400.html
In the matter of Norman Nominees Pty Ltd (in liq) & Ors v Zervos Pty Ltd & Ors [2011] QSC 320 (4 November 2011) Amendment out of time to add new cause of action – Commonwealth statutory cause of action – Commonwealth statutory limitation time – s 588FF(5) Corporations Act 2001 (Cth) – interaction of State procedural rules and Commonwealth statutory limitation time – construction of “a relevant period of limitation” in r 376 – whether s 81 Supreme Court Act 1991 (Qld) is a separate source of power to amend in respect of Commonwealth causes of action – discretion not to allow amendments which would be futile – substantially the same facts Acts Interpretation Act 1954 (Qld), s 32A, s 32AA http://www.austlii.edu.au/au/cases/qld/QSC/2011/320.html
ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation; Binetter v Deputy Commissioner of Taxation [2011] HCA 46 (2 November 2011) Corporations – Reinstatement to register – Winding up – Companies deregistered under Corporations Act 2001 (Cth) (“Act”) – Federal Court made orders reinstating companies to register pursuant to s 601AH(2) of Act and thereupon winding them up – Companies and former director sought writs of certiorari, to quash winding-up orders made by Federal Court, mandamus and prohibition – Whether Federal Court had jurisdiction to wind up companies – Whether Federal Court wound up deregistered companies – Whether Federal Court ordered that winding up take effect from date when companies reinstated – Whether s 601AH(5) of Act requires that company, when reregistered, come back into existence in same form as on deregistration. Procedural fairness – Whether companies should have been given opportunity to be heard before winding-up orders made – Discretionary nature of relief sought – Whether there was unfairness as matter of substance – Whether opportunity to be heard could have made difference to outcome. Words and phrases – “company”, “jurisdictional error”. http://www.austlii.edu.au/au/cases/cth/HCA/2011/46.html
