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    Liquidators not required to prove debts prior to commencing compensation proceedings for insolvent trading
    2014-09-05

    In the matter ofMustang Marine Australia Services Pty Ltd [2014] NSWSC 1074, Brereton J of the New South Wales Supreme Court held that there is no principle that before instituting proceedings a liquidator must be satisfied of the material facts that constitute its cause of action, and that absent such satisfaction the proceedings are an abuse of process. As long as proceedings are instituted for bona fide relief claimed and are not doomed then there is no abuse of process.

    FACTS

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Abuse of process, Debt, Legal burden of proof
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Government seeks to cap redundancy entitlements in insolvencies
    2014-09-09

    On 4 September 2014, the Government introduced the Fair Entitlements Guarantee Amendment Bill 2014 to the House of Representatives (Bill).  The Bill is intended to amend the Fair Entitlements Guarantee Act 2012 (Cth) so as to limit the entitlements payable by the Government to those employees made redundant due to the liquidation or bankruptcy of their employer. 

    Filed under:
    Australia, Employment & Labor, Insolvency & Restructuring, HopgoodGanim
    Authors:
    Paul Betros
    Location:
    Australia
    Firm:
    HopgoodGanim
    Presentation of bankruptcy petition means farm debt mediation act will not prevent creditors from pursuing rights which may be related to a farm mortgage
    2014-09-12

    In Sharpe v WH Bailey & Sons Pty Ltd [2014] FCA 921, Justice Gleeson found that the Farm Debt Mediation Act 1994 (NSW) (FDM Act) did not operate to prevent an individual from pursuing their rights under the Bankruptcy Act1966 (Cth), even though those rights may have been related to a farm mortgage.  In doing so, Justice Gleeson confirmed that the Bankruptcy Act1966 (Cth) will have priority over the FDM Act where the requirements of section 5 of the FDM Act are met.

    FACTS

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Debt
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Federal court comments on receivers and liquidators obligation to hold funds under section 561
    2014-08-08

    In the decision of Saker, in the matter of Great Southern Limited[2014] FCA 771, the Federal Court of Australia held that statutory obligations, not trust obligations, require receivers and liquidators to hold and apply funds for the benefit of employees pursuant to s 561 of the Corporations Act 2001 (Cth).

    FACTS

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Federal Court of Australia
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Australian court opens door to Chapter 11
    2014-08-12

    Introduction

    Filed under:
    Australia, USA, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Public company, Debtor, Australian Securities Exchange
    Authors:
    David Goldman , William R. Greendyke , Toby L. Gerber
    Location:
    Australia, USA
    Firm:
    Norton Rose Fulbright Australia
    The purpose and appropriateness of liquidator’s examinations - a challenge to the status quo?
    2014-08-14

    The approach of the courts to public examinations conducted by liquidators has in recent times arguably tended towards granting increasing liberty to liquidators in the scope of their examinations.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, Abuse of process
    Location:
    Australia
    Firm:
    Piper Alderman
    Hands off my money! High Court of Australia confirms priority of liquidators’ lien
    2014-08-14

    In Stewart v Atco Controls Pty Ltd (In Liquidation) [2014] HCA 15, the High Court of Australia recently delivered a decision which has confirmed the priority of a Liquidator’s lien over the interests of a secured creditor.

    The facts

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, Secured creditor, High Court of Australia
    Location:
    Australia
    Firm:
    Piper Alderman
    Liquidators - obliged to hold money for tax from sale of property?
    2014-08-14

    In Australian Building Systems Pty Ltd v Commissioner of Taxation [2014] FCA 116, the Federal Court held that liquidators do not have an obligation to retain an amount for the payment of tax of a portion of the proceeds from the sale of property owned by the company before liquidation when no tax assessment has been issued. However, Justice Logan made clear that a prudent liquidator would be entitiled to retain the gain until an advice or assessment from the Commissioner, was issued.

    Background

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Tax, Piper Alderman, Capital gains tax
    Location:
    Australia
    Firm:
    Piper Alderman
    Recognition of foreign main proceedings in cross-border insolvency matters
    2014-08-14

    The recent case of Young, Jr, in the matter of Buccaneer Energy Limited v Buccaneer Energy Limited [2014] FCA 711 considered the concept of “the centre of main interests”, described in the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (United Nations General Assembly Resolution A/RES/52/158 (1997)). Senior Associate, Sarah Drinkwater and Associate, Tim Logan discuss.

    Application

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman
    Location:
    Australia
    Firm:
    Piper Alderman
    Setting aside a DOCA: phoenix activity
    2014-08-15

    The recent decision of the Federal Court in Canadian Solar (Australia) Pty Ltd v ACN 138 535 832 Pty Ltd (subject to deed of company arrangement) [2014] FCA 783, is a useful reminder that a deed of company arrangement (DOCA) approved by a majority of creditors at the second creditors meeting can still be terminated by order of the Court if it is found to be unfairly prejudicial to one or more creditors or contrary to the interests of creditors as a whole. 

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth

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