In the recent case of In the matter of Gondon Five Pty Limited and Cui Family Asset Management Pty Limited [2019] NSWSC 469, the New South Wales Supreme Court (Brereton J) considered the purpose and scope of an appointment as receiver to a company, and came down particularly hard on an insolvency practitioner for performing work and incurring expenses which were determined to be outside, or not incidental to, the scope of his appointment.

Background

In a recent case, Emmett AJA of the Supreme Court of New South Wales refused to make an order to terminate the winding up of an incorporated association. In this article, we re-examine the principles with which the Court will have regard when determining whether to exercise its discretion to terminate the winding up of a company or incorporated association.

Background

Receiverships usually arise from a secured creditor exercising their rights under a loan contract or mortgage following a default. But even where no default occurs, the Supreme Court of New South Wales has jurisdiction to appoint a receiver to preserve the property of an association pending the resolution of a dispute about the management of the association’s property.

Jurisdiction

A company’s non-compliance with a statutory demand is the most common method of proving its insolvency in any winding up proceedings. Generally, if it does not make good the debt under the statutory demand within 21 days of service, the company will be presumed to be insolvent. What can a company do if it disputes the legitimacy of the debt?

The basics – compulsory winding up and statutory demands

Prior to March 2017, any right to sue that comprised an asset of a bankrupt’s estate could only be litigated by the trustee of the bankrupt. The inability of a trustee to assign a bankrupt’s cause of action resulted in many such actions not being litigated due to factors such as a lack of resources. This position changed through the insertion into the Bankruptcy Act 1966 (Cth) in Schedule 2 of the Insolvency Practice Schedule (Bankruptcy), which expressly permits a trustee to assign to a third party any right to sue that is held by of a bankrupt estate (see section 100-5).

The Limitations Act 1969 (NSW) (Limitations Act) establishes time limits within which plaintiffs must commence civil proceedings, including for the recovery of a debt. A failure to bring a claim within the relevant time period results in the claim lapsing, and the creditor losing its rights to enforce its debt. Accordingly, it is critical that creditors understand how the law restricts their ability to collect debts and any exceptions that they may rely upon as the limitation date approaches.

(12) 信托计划中受托人对股权投资应当如何进行管理？

实践中，信托计划受托人取得股权主要基于两种情形，一是基于受托而取得股权，即委托人将自己合法持有的股权作为信托财产，转移至受托人管理和处分；二是基于投资而取得股权，即委托人先把自己合法持有的信托资金或其他财产转移至受托人，进而由受托人通过管理、运用该等受托财产，以增资、受让等方式投资取得股权并对该等股权进行管理和处分。

基于受托人取得股权的不同情形，受托人对股权投资的管理责任不完全相同。

如受托人系基于受托取得股权，受托人的股东身份更接近“名义股东”，其对投资股权的管理主要受限于信托合同约定的信托财产的运用及管理方式。

回购条款作为资管产品中常见的增信措施，资管新规对其有何影响？

资管新规之前，回购条款的效力得到法院普遍认可

回购条款本质上是一种逆向的、独立的交易行为，属于合同债权的范畴。其虽然具有一定的债权保障作用，但不构成债权担保的从属性，更不具有担保物权的优先受偿功能。因此，回购条款并非我国的法定担保形式。

资管新规之前，司法实践中，法院在考察当事人意思表示和内容的合法性基础上，一般会认可回购条款的合法有效性。

在“重庆国际信托股份有限公司与安徽三联实业发展有限公司等合同纠纷案”（〔2015〕渝高法民初字第00025号）中，法院认为，“《资产收益权转让及回购协议》系当事人的真实意思表示，不违反法律、行政法规的强制性规定，合法有效。结合信托公司提供的营业执照和金融许可证上载明的内容，信托公司签订的上述合同不违反金融监管部门核准的经营范围；且本案合同所涉的借款资金来源并不影响借款合同本身的效力。”

The statutory demand is a formidable card up a creditor’s sleeve that can result in a company being deemed to be insolvent if it does not pay the creditor’s debt within 21 days of service of the demand. Whether a statutory demand served on an incorporated body other than an Australian company will be effective largely depends on the State or Territory in which the incorporated body is based and whether it is served pursuant to the correct section of the Corporations Act 2001 (Cth) (Corporations Act).

What is a statutory demand?