Key Points
- Floating charge is valid even where there are no unencumbered assets at the time it is taken
- Crystallisation of prior ranking floating charge does not impact enforceability of second ranking floating charge
The Facts
Key points
Whether you are a liquidator, director, employee, shareholder or creditor of a company in financial distress, the experience of a corporate insolvency is usually not pleasant. Directors face the threat of being investigated for breaches of directors duties, employees become unemployed, shareholders become the owners of worthless assets and creditors are forced to come to the realisation that they will never see the money owed to them (or at least not all of it).
The recent decision of Markovic J in Robert Kite and Mark Hutchins in their capacity as liquidators of Mooney’s Contractors Pty Ltd (in liq) & Anor v Lance Mooney & Anor [2017] FCA 653 in the Federal Court of Australia provides practitioners with further clarification of the requirements when insolvency practitioners are appointed to companies which operate as corporate trustees.
KEY TAKE-HOMES FOR INSOLVENCY PRACTITIONERS
Key Points
- Directors cannot file a notice of intention to appoint (NoI) without a ‘settled intention’ to appoint an administrator
- NoIs cannot be used where there is no qualifying floating charge holder (QFCH)
- The judgment has implications for validity of appointments where requirements not met
The Facts
Key Points
- Claims against Kaupthing could not be pursued in the English courts
- No implied restriction on jurisdictional effect under the Winding-up Directive
- Position analogous to Judgments Regulation and Insolvency Regulation
The Facts
Back in March 2017 the NSW Court of Appeal handed down the unanimous decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 (Sakr), reigning in Brereton J’s application of proportionality to liquidator’s remuneration. This week the decision of in the matter of Australian Company Number 074 962 628 Pty Ltd (in liq) (formerly Colonial Staff Super Pty Ltd) [2017] NSWSC 370 (Colonial Super) was handed down by the NSW Supreme Court. The decision is notable as one of the first applications of the principles enunciated in the Sakr decision.
Key Points
On 9 March 2017 the NSW Court of Appeal handed down its decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38, unanimously allowing the liquidator’s appeal against a decision of Brereton J applying principles of proportionality and ad valorum to reduce the liquidator’s outstanding remuneration from the $63,000 claimed by the liquidator to $20,000.
Key Points
- COMI of Jersey companies held to be in England and Wales
- Argument of improper motive generally insignificant where purpose of administration can be achieved
The Facts