The bar for recovering assets that have been dubiously transferred out of an insolvent company may not be as high as one might think.
Background
On 14 June 2016, in its judgment delivered in Great Investments Ltd v Warner [2016] FCAFC 85, the Full Court of the Federal Court of Australia confirmed that a benefit transferred from a company without authority can only be retained by the recipient in very limited circumstances.
Hello everyone,
The Court of Appeal has released a variety of cases this week dealing with such topics as wrongful dismissal, bankruptcy and insolvency, pensions, real estate, and residential landlord and tenant. The most notable decision by far this week is the Groia v. The Law Society of Upper Canada decision in which the court dismissed the member’s appeal from his conviction for professional misconduct. Apparently, according to the Toronto Star, Mr. Groia will be seeking leave to appeal to the Supreme Court of Canada, so this long-running saga is not over yet.
The issue of how causation can be established has been one significant debate in Australian securities class actions involving alleged breaches of the Corporations Act by corporations. It has been unresolved whether shareholders must prove individual reliance on the contravening conduct of companies, or if the conduct affects the market price of shares purchased and/or sold by shareholders is sufficient.
Unfortunately for the Landlord community in Canada’s retail space, the flood of retail insolvencies is likely not over. In addition to open speculation about Sears, 2016 has already seen the insolvency of major Canadian retail locations previously occupied by Danier Leather, Aeropostale, PJ Pets, and Goodwill. There are likely more on the horizon.
Hello everyone,
The Court of Appeal had a busy week and released a number of civil decisions, many of which were procedural in nature – extension of time, leave to appeal, limitation periods, Rule 21. One of these procedural decisions was in the Nortel case, in which the court denied leave to appeal Justice Newbould’s trial decision, apparently bringing the matter substantially closer to a conclusion.
Have a nice weekend.
John Polyzogopoulos
Civil Decisions
Section 440D imposes a stay on “proceedings in a court” against a company whilst it is in administration under Part 5.3A of the Corporations Act. It is well established that the term “proceedings in a court” does not include an arbitration proceeding: see Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 1305 at [42] (Hammerschlag J). Notwithstanding this, can the Court use its general power to make orders under s447A to extend the reach of s440D in order to impose a stay on an arbitration against a company in administration?
Hello everyone.
Except for a brief addendum to an order made in a criminal matter, the Court of Appeal only released civil law decisions this week, which is rare. Topics covered included whether or not leave to appeal a vesting order made on a receivership sale under the Bankruptcy and Insolvency Act is required (it is), an ironic case in which a lawyer initially resisted a professional negligence claim for missing a limitation period by arguing the limitation period had been missed (nice try), insurance law and adjournments.
Hello again.
Most of the Court of Appeal civil decisions this week were procedural in nature. Topics included the standard of review of discretionary orders (deference), municipal law, leave to appeal and stays pending appeal in the CCAA context and the consolidation of appeals to the Court of Appeal as of right with Divisional Court appeals requiring leave.
Have a nice weekend.
Table of Contents
Civil Decisions
Pickering (City) v. Slade, 2016 ONCA 133
Hello All,
Topics covered by the Court of Appeal this week in its civil decisions included franchise law (duty of disclosure), employment law (WSIB and wrongful dismissal of dependent contractors), insolvency (statutory privilege of documents), debtor-creditor (capacity to execute guarantees), MVA (liability of automobile lessors), family law (property claims of unmarried common law spouses), contracts (interpretation and specific performance), and motions to strike for no reasonable cause of action (a claim by a lawyer against the Law Society and a securities class action).