In its much anticipated decision, the High Court has unanimously dismissed the Amerind appeal.[1] This decision finally resolves recent uncertainty as to the proper application of trust assets in the liquidation of an insolvent corporate trustee.
In short, the High Court’s decision confirms that in the winding up of a corporate trustee:
Insolvency may seem an unlikely scenario for your pension plan's employer today and for the foreseeable future but the Pension Protection Fund (PPF) has recently published guidance recommending that defined benefit pension plan trustees should make contingency plans for employer insolvency "as with any sensible business continuity or disaster recovery planning".
Pantiles Investments Limited & Anor v Winckler [2019] EWHC 1298 (Ch)
Background
The Liquidator of the Pantiles Investments Limited (Company) brought a claim (among others) for fraudulent trading against its former director, Ms Winckler. The claim related to a property transaction involving Ms Winkler, an associate (Mr Goldbart) and the Company. In summary, the transaction was as follows:
The significance of this decision
On 3 May 2019, the Federal Court of Australia dismissed an application brought by the administrators of an oil and gas exploration company, Paltar Petroleum Limited (Paltar) to adjourn proceedings for the winding-up of the company in insolvency. The decision illustrates that the belated appointment of administrators appointed by directors in response to pending winding-up proceedings is unlikely to keep at bay the approaching fire of liquidation; indeed, it may accelerate it.
Background
The NSW Supreme Court has reaffirmed the criteria for a Court to inquire into a liquidator’s conduct. It is necessary to show that there is at least a ‘well-based suspicion’ indicating a need for further investigation. ‘Mere wondering’ is not enough.
In exercising its discretion, a Court will also consider the nature and gravity of the allegations against the liquidator, delays in seeking an inquiry, the utility of an inquiry and the existence of alternative remedies.
Background
The recent sale of Black Oak Minerals Limited (Black Oak) to Ramelius Resources Limited (ASX: RMS) (Ramelius) shows that section 444GA of theCorporations Act 2001 (Cth) (the Act) can be used to resurrect a company in liquidation.
The Commissioner of Taxation (Commissioner) recently issued draft taxation determination TD 2019/D2 (TD 2019/D2) dealing with the important question of a receiver’s obligation to retain money for post-appointment tax liabilities. A link to TD2019/D2.
Last year the Technology and Construction Court (TCC) held that a company in liquidation cannot refer a dispute to adjudication in circumstances where there are claims by a company in liquidation and cross claims by the other party1.
It looks like 2019 won't be the new start many had hoped for. With large high street retailers already teetering on the edge after a disappointing Christmas and the government still up in arms about the B word, the country's commercial real estate market is looking more and more uncertain.
The Personal Property Securities Register (PPSR) commenced operation on 30 January 2012. All seven-year registrations made on the:
- old state-based motor vehicle registers, immediately before the PPSR commenced; or
- PPSR immediately after it commenced,
will begin to expire shortly and this will have adverse consequences for secured parties who do not act to renew.