The latest statistics on companies entering external administration and insolvency appointments have been released by ASIC for the periods of December 2014 a
- On 11 March 2015, the High Court delivered its decision in Fortress Credit & Anor v Fletcher & Ors [2015] HCA 10.
- The appellant was Fortress Credit.
640 Elizabeth Street Pty Ltd (in liq) & Ors v Maxcon Pty Ltd [2015] VSC 22 confirms that the granting of security by a company to avoid a proceeding against a related company will not necessarily constitute an “uncommercial transaction”.
BACKGROUND
In the matter of One.Tel Limited (in liquidation) [2014] NSWSC 1892
On 16 January 2015, Justice Beech, of the Supreme Court of Western Australia, handed down his decision in the matters of Hamersley HMS Pty Ltd v Davis [2015] WASC 14 and Hamersley Iron Pty Ltd v James [2015] WASC 10 (the Hamersley Decisions). In both matters, Hamersley sought to set aside determinations made by an adjudicator pursuant to the Construction Contracts Act 2004 (WA) (CCA) and Forge Group Construction Pty Ltd (In Liq) (Receivers and Managers Appointed) (Forge) sought leave to enforce the determinations.
Key Points:
Principals or contractors dealing with insolvent downstream companies should ensure they can properly substantiate any counterclaims.
Usually a principal is not entitled to rely on a set-off or counterclaim to resist court proceedings to recover a debt under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act). However because of the operation of section 553C of the Corporations Act, the situation is different if the claimant is in liquidation.
Insolvent subcontractor’s claim
The Supreme Court of Victoria Court of Appeal recently handed down its decision in Dura (Australia) Constructions Pty Ltd (ACN 004 284 191) (In Liquidation)(Receivers and Managers Appointed) v Hue Boutique Living Pty Ltd (Formerly SC Land Richmond Pty Ltd) (ACN 106 117 506) & Ors [2014] VSCA 326, which dealt with the issue of whether a payment into court is a security interest for the purposes of the Personal Property Securities Act 2009 (Cth)(PPSA).
When a company is facing short term financial difficulties the directors or shareholders may decide to make a loan to the company to pay wages.
The recent Supreme Court of NSW decision In the matter of Anglican Development Fund Diocese of Bathurst Board (recs and mgrs apptd) [2015] NSWSC 6, confirms that a board of directors’ residual powers in receivership include consenting to judgment in favour of a creditor.
BACKGROUND
A recent Western Australian decision has provided guidance on the limits of an insolvent contractor’s ability to enforce an adjudication determination where the principal has an offsetting claim.