Directors against whom claims for a misfeasance have been intimated often turn to limitation and set off in defence of a request for the repayment or restoration of the relevant sums or property.

Misfeasance and limitation

This week’s TGIF considers In the matter of SurfStitch Group Limited [2018] NSWSC 164, where the Court refused to allow administrators to value claims of class action group members at a nominal $1 for voting at the second creditors’ meeting.

What happened?

On 11 December 2017, the administrators of SurfStitch filed an application seeking orders:

This week’s TGIF considers the Victorian Court of Appeal’s decision in Blakeley v CGU Insurance Ltd [2017] VSCA 378, which confirms the rights of third parties to seek direct access to proceeds of insurance.

The decision confirms that, in certain circumstances, third party creditors can commence proceedings against a defendant and also join the defendant’s insurers to those proceedings.

While overall insolvencies fell in number in 2017 compared with 2016, the last quarter of 2017 showed an increase compared with the previous quarters which had been stable.

In those insolvencies, the vast majority are voluntary liquidations, but there is a trend of retail businesses which are struggling turning to the Company Voluntary Arrangement restructuring option, often accompanied by a managed reduction in operations.

This week’s TGIF considers the case of Kreab Gavin Anderson (Australia) Ltd, in the matter of Kreab Gavin Anderson (Australia) Ltd (No 3) [2017] FCA 1473 and an application for approval of remuneration for work carried out by the applicants as administrators and then liquidators of the plaintiff company, in circumstances where those appointments were subsequently found to be invalid.

WHAT HAPPENED?

This article was first published in The Gazette, and the original article can be found online here.

The implementation of the Insolvency Rules 2016 has introduced a number of changes to the procedures in insolvency regimes.

Any business owner will know the importance of consistent cash flow to the success of their business. On 1 October 2017, a new Pre-Action Protocol for Debt Claims will come into force. The new Protocol will make the process of claiming debts from unwilling debtors slower and more onerous for creditors as a new mandatory process before a claim can be issued is required, with longer timescales. It also aims to avoid court proceedings wherever possible, firmly encouraging parties to engage in alternative forms of dispute resolution.

This week’s TGIF considers what the UK decision of Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 means for insolvency practitioners seeking to access potentially privileged documents created by employees of appointee companies.

BACKGROUND

This week’s TGIF examines a recent decision of the Supreme Court of New South Wales which considered whether payments made by a third party to a company’s creditors could be recovered as unfair preferences.

What happened?

On 2 September 2015, liquidators were appointed to a building and construction company (the Company) and later commenced proceedings against eight defendants for the recovery of payments considered to be unfair preferences.

This week’s TGIF considers In re City Pacific Limited in which the NSW Supreme Court considered whether to approve a liquidator entering into a litigation funding agreement under which the funder would receive a premium of at least 50% of any judgment or settlement achieved.

WHAT HAPPENED?

In late 2009, two related companies were wound up and the same liquidator was appointed. The liquidator instituted two proceedings in the NSW Supreme Court: