This week’s TGIF examines a recent decision of the New South Wales Court of Appeal in Hosking v Extend N Build Pty Limited [2018] NSWCA 149, which considered whether payments made by a third party to an insolvent company’s creditors could be recovered by the liquidator as unfair preferences.

What happened?

The two limbs of the defence to an unfair preference claim under section 588FG(1)(b) and (2)(b) of the Corporations Act have separate work to do.

In a useful decision for liquidators and the insolvency industry, the WA Court of Appeal has clarified the nature of the tests creditors need to satisfy to maintain a defence to a liquidator's unfair preference claim in section 588FG(1)(b) or (2)(b) of the Corporations Act (White & Templeton v ACN 153 152 731 Pty Ltd (in liq) & Anor [2018] WASCA 119). 

If you have guaranteed the debts of a person or entity that is in financial distress, you should take legal advice as soon as possible. Whatever you do, do not panic and make a rash decision such as declaring bankruptcy, winding up your business or selling your family home. The creditor seeking to enforce the guarantee may be more amenable to compromise than you think, particularly given the risks that creditors often face when they seek to enforce guarantees.

This week’s TGIF considers In the matter of Arrium Limited [2018] NSWSC 747 in which the Court granted creditors access to documents produced in public examinations.

What happened?

Phoenixing involves stripping and transferring the assets out of a company, leaing it to perish in a blaze to avoid paying its liabilities. A new company is then reborn from the ashes of the old company, starting anew and liability free, however usually with the same assets and business as the old company.

From a public policy standpoint, phoenixing activity is harmful to the economy as a whole. Creditors are often left with nothing and employees are left short-changed.

What are the reforms?

For many suppliers, creditors and landlords, the threat of their counterparty’s insolvency is mitigated by a right to terminate or vary their contracts if there is an “insolvency event”. From July 1 2018 changes to the Corporation Act 2001 (Cth) may, however, limit those rights.

For company directors, the threat of personal liability for debts incurred in periods of actual or potential insolvency looms large. The creation of the ‘safe harbour’ provisions in the Corporation Act 2001 (Cth) that took effect in September 2017 may provide some welcome relief to company directors in periods of financial distress.

Following recent changes to the Corporations Act 2001 (Cth), parties to a contract may be unable to rely on a contractual right to terminate or modify the operation of a contract on the occurrence of certain insolvency-related events of a counterparty to the contract (commonly known as an “ipso facto” provision).

In June we published our JMAlert that outlined how ipso facto reforms will affect commercial contracts entered into after 30 June 2018, click here to view the article.

This week’s TGIF considers In the matter of MJM(WA) Enterprises Pty Ltd (in liq) [2018] NSWSC 944, where the Court approved a liquidator’s remuneration but deferred decisions about trust distributions until after the Re Amerind litigation finishes.

What happened?

The company operated two barbershops in Perth as trustee for a family trust before liquidators were appointed in May 2017.