A U.S. bankruptcy trustee has failed in his attempt to use the UNCITRAL Model Law on Cross-Border Insolvency to access Australia’s domestic voidable transaction regime. The case provides some some important insights into the scope, and limits, of the Model Law.
Category: Insolvency Law
NSW Court of Appeal decision on security of payment regime confirms conflict between Victoria and NSW on the applicability of the regime to insolvent companies
The recent decision of the NSW Court of Appeal in Seymour Whyte v Ostwald confirms that the position in NSW conflicts with the Victorian position on the question of whether the security of payments regime applies to companies in liquidation.
The Full Court of the Federal Court recently considered the fiduciary duties of directors arising out of a dishonest scheme claiming tax deductions that weren’t available to the companies, resulting in liquidation.
Two companies which contended they were ‘unquestionably solvent’ were unsuccessful in an application to injunct a party from instituting proceedings to wind them up. This decision clarifies the extent to which the case law on abuse of process made prior to the enactment of Part 5.4 of the Corporations Act continues to apply.
Disclaiming an insolvent company’s environmental obligations: the case of Linc Energy Ltd (in liquidation)
In Longley v Chief Executive, Department of Environment and Heritage Protection  QCA 32, the Queensland Court of Appeal has clarified the ability of liquidators to disclaim onerous property, including obligations that arise in respect of that property under State environmental legislation.
The Victorian Court of Appeal and a Full Court of the Federal Court have each recently held that the statutory priority regime applies to the winding up of companies that act as trustees of trading trusts, confirming that employee claims and a liquidator’s remuneration and costs are priority debts. Special leave to appeal the Court of Appeal’s decision has been sought.
Can you prefer one creditor by arranging a third party loan, the proceeds of which are paid directly to that creditor, without the arrangement being void against your trustee in bankruptcy? “Yes” says the Full Federal Court – thus confirming an important distinction between personal and corporate insolvency.
Winding up: perfected security interests registered on the PPSR and funds held post-DOCA termination
Funds remaining in a company after a DOCA is terminated may still constitute collateral for a perfected security interest registered on the PPSR if the security deed is drafted in appropriate terms.
Introduction The Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 (Cth) was finally passed by the Senate on 12 September 2017. The Bill will insert provisions into the Corporations Act 2001 (Cth) which will:...
Does a potential administrator’s involvement in pre-administration contingency planning give rise to a conflict of interest, such that the potential administrator should be disqualified from accepting the formal appointment?
Into the twilight zone: Corporate insolvency amendments, and the disappearing act of section 511 (et al)
Seeking directions from the Court in the period 1 March to 1 September 2017 – what are liquidators and administrators to do?
Justice Robson has delivered his decision on an application by receivers and managers for directions as to, among other things, their obligations to pay preferential debts under the Corporations Act from the surplus generated by their trading-on of a business and other recoveries by their appointing bank.
The New South Wales Court of Appeal has overturned one of a series of decisions by Brereton J in which, it held, undue prominence had been given to considerations of proportionality and value of the services provided by liquidators in determining their remuneration claims.
A recent decision of the New South Wales Court of Appeal serves as a timely reminder of the costly consequences of failing to register a PPSR security interest in leased goods.