In brief
2020 has evolved in a way no-one could have predicted, and there is still much uncertainty as to what the future looks like (particularly as a result of Government stimulus payments and rent freezes varying or coming to an end, and newly announced insolvency law reforms that will affect businesses with liabilities of less than $1 million). While the outlook is not entirely pessimistic, suppliers should be preparing themselves for all scenarios.
On 29 September 2020, lawyers from Carey Olsen obtained adecision from the Commercial Court in the British Virgin Islands (BVIs), approving the use of third party funding (TPF) by liquidators in a BVI insolvency case.
Welcome to our latest edition of FMCG Express! 2020 continues to be an eventful year, although we are cautiously optimistic that we may be turning a corner in Australia. While COVID-19 continues to cast a shadow over our lives, our cities are starting to show green shoots of life, which is welcome news. Our thoughts are with our families, clients, associates, friends and colleagues in countries where numbers are at very concerning levels. In this edition, we have some useful COVID-19 reading. Siobhan Mulcahy considers the ongoing issues of JobKeeper with casual workers.
Bankruptcy concerns are becoming very real for many clients in the succession planning space.
More clients are concerned with the risk of having their family assets exposed to a bankruptcy during their lifetime, or the risk that the beneficiaries of their estate may have an inheritance exposed to creditors.
This is a particular concern for clients with partners and children in high-risk occupations, such as professionals and directors of companies, as they can be personally liable for debts owed by their business or negligence claims.
Some experts suggest that, by this time next year, Australia will be awash with insolvent small to medium enterprises (SMEs) needing experienced assistance.1
In Caron and Seidlitz v Jahani and McInerney in their capacity as liquidators of Courtenay House Pty Ltd (in liq) & Courtenay House Capital Trading Group Pty Ltd (in liq) (No 2),[1] the New South Wales Court of Appeal was faced with what it described as the ‘classic insolvency conundrum’: how to distribute funds to investors as equally and as fairly as possible where the funds have
In Cant v Mad Brothers Earthmoving [2020] VSCA 198, the Court of Appeal of the Supreme Court of Victoria has clarified the application of the unfair preference regime in the Corporations Act 2001 (Cth) to payments made by third parties at the direction of a debtor to its creditors. In short, a payment to a creditor by a third party at the direction of the debtor will not be ‘from’ the debtor unless the payment diminishes the assets available to the debtor’s other creditors.
Background
Australia’s ageing population has driven innovation in delivering housing solutions for retirees and elderly alike. As a nation of sports fanatics who also love nature and green open spaces, it is no surprise that there has been a steadily increasing trend to co-locate retirement living with recreational facilities such as golf courses, bowls clubs and other recreational clubs.
HopgoodGanim has been fortunate enough to have acted for a number of retirement village operators (scheme operators) and clubs with respect to co-location projects in Queensland.
In the recent decision of Cant v Mad Brothers Earthmoving,[1] the Court of Appeal of the Supreme Court of Victoria (Justices Beach, McLeish and Hargrave) considered whether the liquidator of Eliana Construction and Developing Group (in liquidation) (Eliana) could establish that a payment made to an unsecured creditor of Eliana by one of Eliana’s related companies was an unfair preference.