“以房抵债”安排，原常见于缓解开发商在开发过程中少量资金短缺的问题，但部分房地产企业逐渐将其演化作为平衡资金需求的工具，签订大量的“以房抵债”协议，在出现现金流危机、甚至濒临破产的情况下，无力偿还欠款，也无力建完房屋交付债权人，使得“以房抵债”的实现问题变得愈加尖锐。而在理论和实践中，“以房抵债”也存在较多的争议，即便表面上均具备相似的特征，由于个案事实细微的差别，或是裁判观点不同，导致不同的判决结果。故此，本文拟就“以房抵债”在破产程序中可能面临的不同效果进行梳理及探讨。

一、关于“以房抵债”的法律关系的厘清

实践中关于“以房抵债”存在着各种各样的约定，归纳起来，最为常见的为“以物抵债”类型的安排：通常发生在债务到期后（部分案件中可能发生在债务到期前），即以债务人或他人持有的房屋作为抵偿债务的“物”，通过折价转让给债权人的形式，实现债务清偿的目的。该种抵偿改变了原债权金钱给付的方式，在理论上，可称为“他种给付型以房抵债”。

This week’s TGIF considers a recent case where the Supreme Court of Queensland rejected a director’s application to access an executory contract of sale entered into by receivers and managers on the basis it was not a ‘financial record’

Key Takeaways

This week’s TGIF looks at the decision of the Federal Court of Australia in Donoghue v Russells (A Firm)[2021] FCA 798 in which Mr Donoghue appealed a decision to make a sequestration order which was premised on him ‘carrying on business in Australia' for the purpose of section 43(1)(b)(iii) of the Bankruptcy Act 1966 (Cth) (Act).

Key Takeaways

This week’s TGIF considers an application to the Federal Court for the private hearing of a public examination where separate criminal proceedings were also on foot.

Key takeaways

This week’s TGIF looks at a recent decision of the Victorian Supreme Court, where a winding up application was adjourned to allow the debtor company to pursue restructuring under the recently introduced small business restructuring reforms.

Key takeaways

This week’s TGIF takes a look at the recent case of Mills Oakley (a partnership) v Asset HQ Australia Pty Ltd [2019] VSC 98, where the Supreme Court of Victoria found the statutory presumption of insolvency did not arise as there had not been effective service of a statutory demand due to a typographical error in the postal address.

What happened?

This week’s TGIF examines a decision of the Victorian Supreme Court which found that several proofs had been wrongly admitted or rejected, and had correct decisions been made, the company would not have been put into liquidation.

BACKGROUND

This week’s TGIF considers a recent Federal Court decision which validated dispositions of property made by a company after the winding up began.

WHAT HAPPENED?

On 8 May 2017, Bond J ordered that a coal exploration company (the Company) be wound up on just and equitable grounds following a shareholder oppression claim. So as to avoid the consequences of a liquidation, his Honour immediately stayed that order for a period of 7 days to enable the warring parties a final chance to resolve their differences.

This week’s TGIF considers Re Broens Pty Limited (in liq) [2018] NSWSC 1747, in which a liquidator was held to be justified in making distributions to creditors in spite of several claims by employees for long service leave entitlements.

What happened?

On 19 December 2016, voluntary administrators were appointed to Broens Pty Limited (the Company). The Company supplied machinery & services to manufacturers in aerospace, rail, defence and mining industries.

This week’s TGIF considers the recent case of Vanguard v Modena [2018] FCA 1461, where the Court ordered a non-party director to pay indemnity costs due to his conduct in opposing winding-up proceedings against his company.

Background

Vanguard served a statutory demand on Modena on 27 September 2017 seeking payment of outstanding “commitment fees” totalling $138,000 which Modena was obliged, but had failed, to repay.