Competing claims to goods are common where there is an unpaid seller with alleged retention of title, the supplier’s customer has gone into external administration and the goods are in the possession of a transport or warehouse provider. Thrown into the mix may be an administrator or liquidator demanding possession of the goods to sell them.
The recent case of M Webster Holdings Pty Limited (administrators appointed) v Specific Freight Pty Limited [2017] FCA 269 illustrates how a transport provider can become ‘the meat in the sandwich’ when a consignee of goods becomes insolvent.
Webster, a fashion retailer, operated two well-known Australian businesses, David Lawrence and Marcs. Webster was placed into administration in February 2017 and its administrators continued to trade with a view to securing a purchaser.
Major law changes intended to make Singapore the region’s pre-eminent restructuring and insolvency hub have now come into effect.
On 22 May 2017, the Singapore Ministry of Finance issued a notice that sections 22 to 34, 40, 41, 43, 45, 49, 50, 53(3) and (6) and 54 (the Relevant Sections) of the Companies (Amendment) Act 2017 (the Amendment Act) would come into operation on 23 May 2017.
On 23 March 2017, Justice Robson of the Supreme Court of Victoria declined to follow the Victorian Court of Appeal decision of Re Enhill, finding that the decision was not binding with respect to different legislation (the Companies Act 1961 (Vic) as opposed to theCorporations Act 2001 (Cth)).
Background
Since the early 1980s, there has been a divergence of judicial opinion in the decisions of Re EnhillPty Ltd [1983] 1 VR 561 and Re Suco Gold Pty Ltd (in liq) (1983) 33 SASR 99.
On 17 March, in Hambleton v Finn [2017] QDC 61, McGill SC DCJ of the District Court of Queensland applied the section 553C(1) setoff under the Corporations Act 2001 to a liquidator’s insolvent trading claim against a director.
His Honour followed the earlier decision of the District Court of Queensland in Morton v Rexel Electrical Supplies Pty Ltd. In that case, the set-off provision was applied where the liquidator was seeking the recovery of unfair preference payments.
The Singapore Government has just passed the Companies (Amendment) Bill 13/2017 (the Bill), which contains major changes to Singapore’s restructuring and insolvency laws. As planned, these changes are expected to come into effect at the latest by the second quarter of 2017,1 and will be a major shake-up to the restructuring landscape of the region.
When a lessee fails to comply with a notice to remedy a non-payment or other lease default, the lessor may be entitled to terminate the lease and retake possession of the property. This is commonly done by changing the locks.
However, a lessee who wants to save itself from being evicted can apply to court to prevent the lessor from retaking possession. In Queensland this application is made under section 124 of the Property Law Act 1974 (Qld) and is known as an application for relief against forfeiture.
When is relief against forfeiture granted?
On 1 February 2017, the Supreme Court of Singapore and the United States Bankruptcy Court for the District of Delaware announced that they will formally implement the Guidelines for Communication and Cooperation between Courts in Cross-border Insolvency Matters ("Guidelines").
Last week the Supreme Court of New South Wales provided another timely reminder to ensure that all security interests are correctly registered on the Personal Property and Securities Register (PPSR) through the decision In the matter of OneSteel Manufacturing Pty Ltd (administrators appointed) [2017] NSWSC 21.
The facts
Alleasing Pty Ltd leased a crushing and screening plant (for approximately $4 million annually in rent) and spare parts for the crusher to OneSteel Manufacturing Pty Limited.
Failing to register a lessor’s security interest on the PPSR over plant and equipment at leased premises can result in the lessor’s unperfected security interest passing to the administrator of the lessee.
In the recent decision of Flown Pty Ltd v Goldrange Pty Ltd [2016] WASC 419, a lessee’s administrator successfully retained ownership of plant and equipment (which were not fixtures) in the leased premises.
Background