The recent New South Wales Supreme Court (Court) decision in In re MF Global Australia Ltd (in liq) No 2 [2012] NSWSC 1426 (23 November 2012) confirms that liquidators who properly incur costs and expenses in seeking court directions regarding the distribution of trust property and, in recovering such property, will generally be able to recover their relevant remuneration, costs and expenses from that trust property.
The recent Supreme Court of New South Wales decision in Re V & M Davidovic Pty Limited [2012] NSWSC 1598 clarifies where the directors of a company in receivership will be authorised to defend a winding up application and confirms that Courts will be reluctant to adjourn such applications in order to allow the directors to gather evidence of solvency.
The Facts
In Carey v Korda [2012] WASCA 228, the Supreme Court of Western Australia Court of Appeal confirmed the rights of receivers to claim legal professional privilege. A little over a year ago, we considered the first instance judgment in a previous TGIF article.
THE BACKGROUND FACTS
The recent Federal Magistrate’s decision in Commonwealth Bank of Australia v Oswal [2012] FMCA 1082 reminds us that leaving a jurisdiction does not mean leaving your business behind, including the business of paying debts.
Background
Mr Oswal guaranteed a loan of $27 million from the Commonwealth Bank of Australia (CBA) to Garuda Aviation Pty Ltd (Garuda) for the purchase of a jet plane. Mr Oswal was, and remains, a director of Garuda.
The recent Supreme Court of Victoria decision in Re National Personnel Pty Ltd (in liquidation) [2012] VSC 508 confirms that the Court will take a broad approach in determining the true employer where the employer-employee relationship is confused and the liquidator is in doubt as to the identification of the employer.
Background
The recent Federal Court of Australia (Court) decision in KASH Aboriginal Corporation ICN 108 (Administrators Appointed) No 2 [2012] FCA 789 confirms that an administrator of a company who acts honestly and reasonably may be protected from personal liability for any debts incurred while carrying out an administration.
Background
Before the recent decision in Rubin and another v Eurofinance SA and others and New Cap Reinsurance Corporation (In liq) and another v AE Grant [2012] UKSC 46 (the joint appeal of two earlier cases) (the Rubin/New Cap Appeal), an insolvency judgment obtained in an Australian court could be enforced in the UK despite falling outside of the traditional common law enforceability rules.
The Rubin/New Cap Appeal has now removed this special treatment afforded to foreign insolvency judgments and the old common law rules once again apply.
- Transfers
From April 2012 it has been possible to make transfer payments from contracted-out to contracted-in pension plans. Many members have a statutory right to such a transfer (irrespective of contrary restrictions in pension plan rules). Legislation sets down a number of member safeguards that must be met. Any transfer is subject to a receiving scheme being willing to accept it. Trustees should be aware of the impact on administration and member communications.
According to a ruling of the High Court, Financial Support Directions and Contribution Notices issued by the Pensions Regulator once an English insolvency process has commenced rank as expenses of the insolvency process (and therefore take precedence over ordinary creditors). This ruling will cause huge practical difficulties for insolvency practitioners. The decision is subject to appeal.