The statutory demand is one of the most frequently used (and misused) tools utilized by companies and other persons to obtain payment of debts owed to them by a company. Service of a statutory demand can be the first step towards placing insolvent companies into liquidation.

The consequences for a company that does not respond to the service of a statutory demand can be severe.

One of those consequences is that the company may find itself in the position where it is required to prove solvency before a court, in order to avoid a winding up.

The Financial System Inquiry was formed on 20 November 2013 by our Federal Treasurer to examine how our financial system could be positioned to best meet Australia’s evolving needs and support economic growth. The Inquiry received over 280 first round submissions and released it’s Interim Report earlier this week. ^[1] 

Last Friday, the Full Court of the Federal Court of Australia handed down its decision in ASIC’s case seeking the removal and replacement of the liquidators of the Walton Constructions group, on the grounds of a perceived lack of independence.

Key Points:

A forbearance arrangement is a useful instrument to ensure that both the lender and the customer are aligned on the proposed turnaround or workout.

When the employer underwent a restructure, the employee’s reporting line changed, as well as his membership of a particular leadership team. His role was not abolished. For two months after the restructure, the employee continued to work in the same role, under the same contract, until he tendered his written resignation. He subsequently filed a dispute under the terms of the applicable Enterprise Agreement, seeking orders that he should have been retrenched by the employer.

The Supreme Court of Queensland decision of First Strategic Corporation Limited (In Liq) and Anor v Chan and Ors [2014] QSC 60 gives insolvency practitioners guidance as to what consideration can be taken into account when assessing the solvency of a company by the means and preparedness of someone to support the company.

Background

Secured creditors should not allow a liquidator to sell a secured asset without first:

Despite the power to provide directions to Administrators and Liquidators specifically provided in the Corporations Act, one consistent theme arises in the cases – the Courts will not second-guess purely commercial decisions of practitioners.

In Vasudevan v Becon Contructions (Australia) Pty Ltd [2014] VSCA 14, the Victorian Court of Appeal recently delivered a decision which has broadened the scope of an unreasonable director-related transaction under section 588FDA of the Corporations Act 2001 (Cth)(Act). Senior Associate, Elisabeth Pickthall and Associate, Stefano Calabretta discuss the case.

The facts

A recent case involving frozen funds held by American Express in the US has highlighted the difficulty of enforcing freezing orders internationally. In this particular instance, Warren Jiear, Head of Piper Alderman’s Insolvency team, was able to use this to assist liquidator, Blair Pleash of Hall Chadwick, to recover substantial funds owing to an insolvent company.