Gothard v Fell; in the matter of Allco Financial Group Ltd (receivers and managers appointed) (in liq) (2012) 88 ACSR 328

On 15 May 2012, Jacobson J of the Federal Court of Australia allowed an application by Receivers to be released from confidentiality undertakings so that use could be made of Australian Securities and Investments Commission (ASIC) examination transcripts.

Background

A recent Federal Court of Australia decision in the administration of the Hastie Group Limited (Hastie Group)¹ illustrates a number of important points for administrators, secured parties and purchasers under the new regime established under the Personal Property Securities Act 2009 (Cth) (PPSA). If you would like to discuss the implications of this case with any of our PPSA or insolvency litigation experts, please do not hesitate to contact us.

The facts

As the prospects for business survival become ever tougher due to challenging economic conditions, administrators and liquidators are increasingly finding themselves having to justify to the courts whether or not costs should be treated as an expense of the administration or liquidation.

Sums incurred or paid as an expense of an administration or liquidation are, unlike debts incurred before the appointment of the administrator or liquidator, paid in preference to unsecured debts and also before the administrator or liquidator's fees and expenses.

At the end of 2011, the Federal Government introduced two draft Bills directed at clamping down on companies that engage in “phoenix” activity.

In our March 2012 Insurance Update we considered the potential widening of the scope for creditors to claim damages against a director personally for contravention of the Corporations Act 2001 (Act). The Supreme Court of Queensland awarded Phoenix Constructions over $1.2 million in damages against Mr McCracken for contravention of s 182 of the Act. This decision, a first of its kind, was appealed by Mr McCracken.

There have been a number of first instance decisions concerning the construction and effect of Section 2 (a) (iii) of the ISDA Master Agreement. The problem has been the conflicts between the various judgments, and in particular, with respect to the interpretation and effect of Section 2 (a) (iii). This has led to uncertainly as to how the Section is intended to operate.

Today, the Financial Services Authority (FSA) published Final Notices for Christchurch Investment Management Limited (Christchurch) and the firm's compliance officer, David Thornberry, for breaches of the FSA's client money rules (CASS rules).

We have seen an increasing number of pre-packs over recent years, how does a pre-pack work?