以物抵债，指债权人与债务人之间存在金钱债务，双方约定将债务人财产作价交付债权人抵偿债务的行为。实践中，主要分为两种类型，包括当事人双方协商的以物抵债和民事强制执行程序中的以物抵债程序，本文仅就前种以物抵债类型进行探讨。

近年来，随着新冠疫情影响，经济形势发生变化，再加上政策调控等多重因素打击，导致地产行业遭遇寒冬，现金流频繁遭受考验。迫于资金回款压力，为了缓解僵局，地产企业推出“工抵房”“内部房”等房源以期减轻对外负债或实现现金回流。其中，“工抵房”也被称为工程抵款房，是开发商用于给工程方抵扣工程款的一种方式，也是大众所俗称以物抵债的一种常见形式。虽然，工程方的需求是现金而并非房屋，但目前经济形势下，工程方面临开发商无款支付的现实局面，只能无奈被迫接受“工抵房”。尽管“工抵房”的出现使得开发商不再面临房子无路销售的难题，同时解决了部分应付款项；工程方能获得部分“工抵房”以解决工程资金被长期拖欠的难题；购房者可以更低价格买到“工抵房”从而降低购房成本，这一循环链看似多赢，实则隐藏大量法律风险。本文将从“工抵房”的角度，以工抵债权人的视角，对以物抵债的性质、模式、法律风险等维度进行分析，以期对实践和后续研究有所贡献。

一、以物抵债协议的性质

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 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.

The recent decision of the Court of Appeal of Western Australia, Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in Liquidation) (Receivers and Managers Appointed) [2018] WASCA 163 provides much needed clarity around the law of set-off. The decision will no doubt help creditors sleep well at night, knowing that when contracting with counterparties that later become insolvent they will not lose their set-off rights for a lack of mutuality where the counterparty has granted security over its assets.

This week’s TGIF considers the decision in Mujkic Family Company Pty Ltd v Clarke & Gee Pty Ltd [2018] TASFC 4, which concerns a rather novel issue – whether a solicitor acting for a shareholder might also owe a duty of care to the company in liquidation.

What happened?

In 2015, the Supreme Court of Queensland ordered that the corporate trustee of a family trust be wound up.

This week’s TGIF considers the process that a liquidator may follow when a director fails to attend at an examination. It considers the appeal in Mensink v Parbery [2018] FCAFC 101, in which the Court set out the relevant differences between arrest warrants issued to require a director to attend an examination, and arrest warrants to answer charges for contempt.

What happened?

How far do liquidators’ powers to demand documents for public examinations extend? Which documents can they request and from whom can they request them?

In this week’s TGIF, we consider these questions in the context of the recent case of Re Cathro [2018] FCA 1138.

BACKGROUND

This week’s TGIF examines a recent decision of the New South Wales Court of Appeal in Hosking v Extend N Build Pty Limited [2018] NSWCA 149, which considered whether payments made by a third party to an insolvent company’s creditors could be recovered by the liquidator as unfair preferences.

What happened?