Di Cioccio v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Di Cioccio) [2015] FCAFC 30

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)

An appeal from the decision of Di Cioccio v Official Trustee in Bankruptcy [2014] FCA 782.

BACKGROUND

Stephanie Roebuck As Executor Of The Deceased Estate Of Suzanne Florence Bulwinkel (Roebuck) served Bulwinkel Enterprises Pty Ltd (Bulwinkel) with a statutory demand for the payment of $990,377.63 monies owing in connection with an unpaid trust distribution and loan between the parties. 

The Federal Court recently handed down another decision arising from the collapse of Babcock & Brown. In its decision, it clarified how continuous disclosure obligations intersect with insolvency.

The case was brought by various shareholders against Babcock & Brown Limited and its liquidator. Amongst other things, the shareholders claimed that:

When a buyer’s characteristics can determine whether they are misled about the features of a property

Orchid Avenue Pty Ltd v Hingston & Anor [2015] QSC 42 per McMurdo J

This case highlights the importance of buyers making their own enquiries when purchasing properties for reasons that relate to features external to the property, such as ocean views. 

ASIC has recently released its report regarding the regulation of registered liquidators for the 2014 calendar year.

In brief: The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in Andrews and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal.

When a company goes into liquidation liquidators will often try to ‘claw back’ uncommercial transactions. The recent case of 640 Elizabeth Street Pty Ltd (in liq) & Ors v Maxcon Pty Ltd [2015] VSC 22 considered whether securing the indebtedness of a third party to avoid potential litigation exposure is an uncommercial transaction. 

Background facts

Liquidators and Trustees in Bankruptcy - Claw-Back

Sometimes service providers feel that they should not get involved to assist financially troubled clients obtain work-out or insolvency advice in fear that if their client goes into liquidation or bankruptcy that the WIP and/or fees/costs paid may be lost or "clawed back" by a liquidator because of an unfair preference claim.

The Federal Court of Australia has recently issued a decision clarifying the breadth of its powers under the Cross-Border Insolvency Act 2008 (Cth) (the Act).

Another judgment has been handed down in the ongoing dispute between the MFS/Octaviar liquidators and Fortress Credit Corporation (Australia) II Pty Ltd (Fortress). In this latest decision, the NSW Court of Appeal has confirmed that a creditor can attack a litigation funding agreement entered by a liquidator.

The relevant facts were as follows: