Some 12 months ago, following the publication of that year’s Courts Service Annual Report, we suggested that 2020 would be remembered as a year like none other. However, a year later, the publication of the Courts Service Annual Report for 2021 (Report) describes a year of legal activity, in a debt recovery context, that very closely mirrors 2020.

Our emergence from social and economic lockdown has led to much discussion around “the new normal” for our personal and business lives. In that context, the Courts Service Annual Report for 2019 (“the 2019 Report”) published in July 2020 is an opportunity to look back upon the pre-COVID-19 operation of civil and criminal litigation in the Irish courts, particularly developments on the debt recovery site.

The Personal Insolvency Act 2012 was enacted with the aim of throwing a lifeline to debtors, many of whom may be in arrears on mortgage loans secured against their principal private residence.

The recent publication of the Courts Service Annual Report 2018 highlighted on-going economic and societal changes by way of hard data. In his Foreword to the Report, Chief Justice Frank Clarke references our digital age, noting that “people are used to round-the-clock online access to services”. He adds that the courts “must deal with the twin challenge of facilitating such access while at the same time ensuring that the court process is secure and that cases are allocated the time and consideration they require”.

The default setting for the hearing of many contested debt recovery and security enforcement cases is by way of affidavit evidence, particularly in the High Court[1]. The creditor swears an affidavit setting out the reasons why it maintains the court should rule in its favour. Certain documents can be presented as exhibits that back up its case such as a contract.

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?

Bankruptcy law has always sought to strike a balance between the rights of creditors and debtors. In Ireland, bankruptcy and personal insolvency law has incurred seismic change over the past decade. Many of the legislative changes have been implemented from a policy basis of assisting the debtor. We look at recent developments, from the point of view of the petitioning creditor in any bankruptcy.

Automatic discharge from bankruptcy

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 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.