Commentary and case law from the Commercial Bar Association's finest.
A liquidator has successfully relied on legal profession disciplinary legislation to challenge a lawyer’s non-compliance with a s 530B notice. The result is that the dispute was heard and determined in VCAT, as opposed to the Supreme Court of Victoria which traditionally has jurisdiction over s 530B notices
The High Court of Australia has held unanimously[1] that a person who commences proceedings against an insolvent company or a bankrupt individual can join that defendant’s insurer to the proceedings and seek a declaration that the insurer is liable to indemnify the defendant.
A bankruptcy trustee’s notice objecting to discharge on one of the special grounds specified in the Bankruptcy Act 1966 can be valid even if based on additional unstated reasons, so long as those reasons are directed to the achievement of a purpose of the law of bankruptcy.
The costs of ‘convening’. Whether the person requesting a meeting of creditors, pursuant to 5.6.15(1)(b) of the Corporations Regulations 2001 (Cth) be called is only liable for the costs of calling the meeting.
Whether inconsistency between Div 4B of Pt VI, s 58(1)(b) in Div 4 of Pt IV and s 116 of Pt VI of the Bankruptcy Act 1966 (Cth)
Application of Personal Properties Securities Act 2009 (Cth) and the operation of section 588FL and section 588FN of the Corporations Act 2001 (Cth)
Whether application seeking a declaration for or against the title of the trustee to a trustee in bankruptcy under s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is a ‘special federal matter’ within the meaning of s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth).
Examination of whether shares purchased from a bankrupt’s income below the threshold amount in respect of which he was required to make contributions to his trustee under Division 4B of Part 6 of the Bankruptcy Act 1966 (Cth) is within the meaning of “after acquired property” in s 58(1).
The decision is significant because it confirms that a payment of a dividend to a creditor does not necessarily extinguish the company’s claim for the balance in fact owing to it.
The Full Federal Court has confirmed a “modified universalism” approach to cross-border insolvencies, and provided guidance on what is required for the “adequate protection” of rights of local creditors under the Model Law on Cross-Border Insolvency (‘Model Law’), as enacted in Australia by the Cross-Border Insolvency Act 2008 (Cth).
The High Court held unanimously that a liquidator is entitled to an equitable lien over settlement monies for litigation expenses which the liquidator incurred for the purpose of impugning a secured creditor’s charge, applying and confirming the principle in Universal Distributing in the process.
Appeal from liquidators’ decision to reject claim for the return of cleaning equipment subject to retention of title. Consideration of retention of title clauses and the application of the transitional security agreements under Personal Property Securities Act 2009 (Cth).
In insolvency law the calculation of precise periods of time is important. Insolvency practitioners need to know exactly when limitation periods end in order to preserve potential claims. The “relation back period” is one of the more important time periods relevant to calculating limitations, and yet there is surprisingly little authority on exactly when the relation back period starts.
In Vasudevan & Ors v Becon Const & Anor [2014] VSCA 14, the Victorian Court of Appeal adopted a broader interpretation of the phrase ‘for the benefit of … a director’ in s 588FDA of the Corporations Act 2001 (the Act) than has been accepted in previous cases. The decision has the potential to widen the ambit of the unreasonable director-related transactions provisions of the Act.