Key Summary

The Full Court of the Federal Court of Australia has held that the Commissioner of Taxation’s (Commissioner) formal information gathering powers override the obligation imposed on a party to litigation not to use information or documents disclosed by another party for any other purpose outside the proceedings in which they were disclosed (commonly known as the ‘Harman obligation’1).

JWS has achieved an excellent result for the liquidators of the Gunns Group, with success in the Federal Court’s judgment in Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, In the Matter of Gunns Limited (In Liq.) (Receivers and Managers Appointed) [2018] FCA 238.

JWS has achieved a significant win on behalf of Linc’s liquidators, PPB Advisory, in their proceedings against the Queensland State Government in relation to Linc’s environmental liabilities. The Queensland Court of Appeal has unanimously overturned the Supreme Court judgment of Jackson J, which was the subject of an appeal hearing in September 2017 at which Bret Walker SC appeared for the liquidators.  

Justice Robson’s decision in Re Amerind1 was one of a number of recent authorities which created doubt as to how the statutory insolvency regime, and in particular how the priority waterfall, should be applied to recoveries from trust assets.

JWS successfully protected the rights of the class action creditors to have their claims in the voluntary administration of SurfStitch Group Limited (SGL) valued appropriately, for the purposes of voting at the second meeting of creditors of SGL. Joseph Scarcella of JWS acts for Nakali Pty Limited (Nakali), the lead plaintiff in the first class action proceeding instituted against SGL.

The rules on contingent assets are broadly as for last year but there are developments to note. Recertification can take longer than expected if there have been changes in relation to an asset.

Trustees and sponsors should be preparing for the recertification of contingent assets that are to remain in place with a view to levy advantage for the 2018/19 year. If there have been changes in relation to a contingent asset, recertification may take materially longer than otherwise.

With residential leasehold law in the spotlight, landlords should be aware of a recent court case which focused upon the method of calculating the premium payable for a residential lease extension.

In Re Atwell & Co Pty Ltd (in liq) [2017] VSC 683, Justice Kennedy of the Supreme Court of Victoria considered the application of the ‘proportionality’ principle in determining liquidator remuneration.

Making sense of the purchase money security interest (PMSI) priority provisions in the Personal Property Securities Act 2009 (Cth) (PPSA) can be challenging for financiers and insolvency practitioners tasked with assessing the merits of competing security interest claims.

The recent judgment of the Western Australian Court of Appeal in Hughes v Pluton Resources Ltd 1, concerns the interaction between a deed of company arrangement (‘DOCA’) under Part 5.3A of the Corporations Act 2001 (Cth) (‘CA’) and the Personal Property Securities Act 2009 (Cth) (‘PPSA’).