Whether you are a liquidator, director, employee, shareholder or creditor of a company in financial distress, the experience of a corporate insolvency is usually not pleasant. Directors face the threat of being investigated for breaches of directors duties, employees become unemployed, shareholders become the owners of worthless assets and creditors are forced to come to the realisation that they will never see the money owed to them (or at least not all of it).
The EU Regulation on Insolvency Law 1346/2000 (EIR) was considered a milestone in the cross-border coordination of national insolvency proceedings. The recast of the EU Regulation on Insolvency Law 2015/848, applicable to insolvency proceedings opened after 26 June 2017, considers substantial developments in national insolvency laws.
Background
We all know that Australians have an unhealthy obsession with owning their own home. And with house prices surging over the past 5 years there is every right to be obsessed. But why sacrifice so much to purchase your dream home only to watch it fall into the hands of creditors?
The recent decision of Markovic J in Robert Kite and Mark Hutchins in their capacity as liquidators of Mooney’s Contractors Pty Ltd (in liq) & Anor v Lance Mooney & Anor [2017] FCA 653 in the Federal Court of Australia provides practitioners with further clarification of the requirements when insolvency practitioners are appointed to companies which operate as corporate trustees.
KEY TAKE-HOMES FOR INSOLVENCY PRACTITIONERS
An extensive amendment to Act No. 182/2006 Coll., on Insolvency (the "Insolvency Act") will come into effect on 1 July 2017 (the "Amendment").
The Amendment takes into account the practical recommendations of insolvency judges and administrators as well as other legal professionals. It fundamentally changes many aspects of insolvency proceedings, from preliminary assessment of the insolvency petition, to supervision of the insolvency administrator by the Ministry of Justice and debt relief procedures.
The Amendment primarily aims to
From an economic perspective, especially in the current business environment, contractual freedom is the best legal method to satisfy the legitimate interests of individuals and to ensure the general benefit and, consequently, social progress. From this point of view, in any activity, every business is seeking to make a profit. Achieving this depends on a series of determinant factors as well as a certain number of risks which any business should assume when implementing its objectives.
Back in March 2017 the NSW Court of Appeal handed down the unanimous decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr [2017] NSWCA 38 (Sakr), reigning in Brereton J’s application of proportionality to liquidator’s remuneration. This week the decision of in the matter of Australian Company Number 074 962 628 Pty Ltd (in liq) (formerly Colonial Staff Super Pty Ltd) [2017] NSWSC 370 (Colonial Super) was handed down by the NSW Supreme Court. The decision is notable as one of the first applications of the principles enunciated in the Sakr decision.
On 9 March 2017 the NSW Court of Appeal handed down its decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38, unanimously allowing the liquidator’s appeal against a decision of Brereton J applying principles of proportionality and ad valorum to reduce the liquidator’s outstanding remuneration from the $63,000 claimed by the liquidator to $20,000.
Even at first blush, it is apparent that arbitration and insolvency make strange bedfellows.
In November 2016, the High Court of Australia heard a challenge brought by Clive Palmer in respect of the constitutional validity of the power of a liquidator to examine a former director of a company before the court. At the conclusion of that hearing, Kiefel J, as her Honour then was, stated that the Court was unanimously of the view that the challenge had failed and that reasons would be published later. Yesterday the High Court published those reasons.
The proceedings