This week’s TGIF considers the case of Bowesco Pty Ltd v Westpoint Management Ltd [2015] WASCA 184, which considered whether a guarantor had a right of subrogation enabling it to be repaid in advance of the second ranking creditor. 

BACKGROUND

The recent Full Court of the Federal Court of Australia decision of Templeton v Australian Securities and Investment Commission [2015] FCAFC 137 has considered the application of 'proportionality' in determining receivers' remuneration.

What do you do when a company owes you money? Or a creditor issues a statutory demand on your company?

This article discusses what a statutory demand is and the risks and benefits of issuing a statutory demand to recover your money.

In a recent decision of the High Court of Australia (which is the highest appellate court in Australia), a freezing order in respect of a prospective foreign judgment has been unanimously upheld.

This is a significant decision as the High Court has confirmed the validity of prospective freezing orders, a point previously the subject of some uncertainty in Australia, thereby greatly improving the position of parties seeking security in Australia in respect of foreign proceedings.

Background

Before commencing winding up proceedings against a debtor company, it is very common for a creditor to serve a creditor's statutory demand for payment of a debt ("statutory demand"). After spending time and effort preparing a statutory demand, it is crucial that the statutory demand is served properly on the debtor company. If it is not served properly, the statutory demand may be set aside and cost you money.

In a previous article, we addressed some of the pitfalls of drafting subpoenas and provided some tips and tricks for the drafting of subpoenas (see “The Pitfalls of Subpoenas”). Since that article, the NSW Court of Appeal has addressed the issue again with a timely warning to insurers that improperly drafted subpoenas will be set aside, in whole or in part.

The Need for Reform

Insolvency figures bring into stark light the reality of business in the construction industry. In the last financial year, 13% of companies entering external administration in the Northern Territory were from the construction sector.

Significant causes of contractor failure include inadequate cash flow, poor strategic management of the business, inadequate contract administration skills and a lack of working capital to see a project or a dispute through.

Where a court has ordered the winding-up of a company, a shareholder may be able to have the winding up terminated under section 482 of the Corporations Act 2001.

Relevant factors

The power of the court to terminate a winding-up is discretionary. Relevant factors to be considered, which are not exhaustive, include the following:

On 14 July 2015, the South Australian District Court in Matthews v The Tap Inn Pty Ltd [2015] SADC 108 handed down a decision whose underlying reasoning could, if applied by superior courts around Australia, broaden the scope for liquidators to pursue unfair preference claims against secured creditors.

The decision

This week’s TGIF considers the recent NSW Supreme Court decision of Westpac Bank v Raflick Sayah [2015] NSWC 1167, provides comfort to banks and their receivers in that it validated the actions of a Receiver who had obtained expert advice on a sale process and had undertaken a thorough process.

THE FACTS