In DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96, the Court of Appeal considered the meaning of the “interests of the creditors as a whole” under section 600A of the Corporations Actand the circumstances in which the Court will intervene to set aside or impose conditions on resolutions passed at creditors meetings.
BACKGROUND
In the decision of JPMorgan Chase Bank, National Association v Fletcher; Grant Samuel Corporate Finance Pty Limited v Fletcher [2014] NSWCA 31, the Court of Appeal of New South Wales confirmed that liquidators may apply under rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to further extend the time within which they may bring voidable transactions proceedings. We considered the first instance judgment in a
In the decision of In the matter of AWA Limited (Administrators Appointed) (Receivers and Managers Appointed) ACN 111 674 661 [2014] NSWSC 249, the New South Wales Supreme Court considered the scope of s 477D of the Corporations Act 2001 (Cth) and whether it was appropriate to make a direction regarding the administrators’ entry into a loan agreement to pay out a secured creditor.
Background
In the case of Bosi Security Services Ltd v Wright [2013] WASC 431, in which the court granted an interlocutory injunction preventing the sale of land by receivers despite acknowledging that the applicants’ case under the Trade Practices Act and Australian Consumer Law was not a strong one and had obvious deficiencies.
Facts
The decision of the Queensland Supreme Court (Court) in International Cat Manufacturing Pty Ltd (in liq) & Anor v Rodrick & Ors [2013] QSC 307 is a reminder that liquidators who commence proceedings may be personally liable for costs of the proceeding where they are unsuccessful in their claim.
FACTS
It goes without saying that it is important for an insolvency practitioner to be independent and to be seen to be independent when accepting an appointment or continuing to act in an existing appointment. The recent Federal Court decision of ASIC v Franklin [2014] FCA 68 provides some welcome guidance on what this means in practice and also on the contents of a declaration of independence, relevant relationships and indemnities (commonly known as a “DIRRI”).
FACTS
In Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51, the High Court has confirmed that a liquidator of a landlord company has the power to disclaim a lease. The effect of the disclaimer is to terminate the leasehold interest of the lessee.
FACTS
The recent Victorian Supreme Court decision of Le Roi Homestyle Cookies Pty Ltd (in liquidation) v Gemmell [2013] VSC 452 determined that a person who does not claim privilege when being publicly examined by a liquidator will not be allowed to avoid pleading and providing discovery in subsequent civil proceedings on the basis that complying may expose them to a civil penalty or criminal sanction.
Facts
The defendants were alleged former de facto and shadow directors of Le Roi Homestyle Pty Ltd.
The Federal Court decision of Crumpler (as liquidator and joint representative) of Global Tradewaves Ltd (a company registered in the British Virgin Islands) v Global Tradewaves (in liquidation), in the matter of Global Tradewaves Ltd (in liquidation)[2013] FCA 1127 provides an illustrative example of the way that cross border insolvency recognition can be used to aid a foreign administration.
Facts
Like the mythical bird that dies and then resurrects, phoenixing is the deliberate liquidation of a company to avoid paying tax, creditors or employees and then the ‘resurrection’ of the business through a different entity.
It is illegal and particularly prevalent in the construction sector. It’s time for the states to take action against phoenixing through better licensing of builders.