The decision Akers as a joint foreign representative of Saad Investments Company Limited (in Official Liquidation) v Deputy Commissioner of Taxation [2014] FCAFC 57 demonstrates that Australian Courts may be willing to depart from the philosophical basis for cross border insolvency in order to protect the interests of Australian based creditors.

Background

When the liquidator of a company comes knocking on a creditor’s door, it is to echoes of "Queue jumper!" reverberating in the background. 

Essentially, one of a liquidator's first tasks when appointed is to identify whether any creditors have been given 'preferential  treatment' - that is, whether they have been paid some or all of their debt just prior to the company's liquidation and at the expense of other creditors.

In Re John Pettit Pty Limited (Subject to a Deed of Company Arrangement) [2014] NSWSC 728, the Supreme Court of NSW considered an application by the deed administrators of John Pettit Pty Ltd (John Pettit) seeking directions to sell property potentially owned by third parties and orders which limited the Deed Administrators’ personal liability in relation to the sale.

BACKGROUND

The Supreme Court of Western Australia has recently held that a creditor’s claim against a guarantor was extinguished some years earlier, under the guarantor’s deed of company arrangement (DOCA).

The reasoning behind Le Miere J’s decision in Australian Gypsum Industries Pty Ltd v Dalesun Holding Pty Ltd is that a DOCA extinguishes future liabilities arising under an agreement made prior to the execution of the DOCA. This includes those arising under pre-existing guarantees.

Introduction

On Tuesday 10 June 2014 in the Australian Capital Territory Industrial Magistrates Court, an early mention in the Kenoss Contractors case was heard.  This case includes a prosecution of both an organisation for allegedly failing to meet the primary health and safety duty and an officer for allegedly failing to exercise due diligence under the Work Health and Safety Act 2011 (ACT) which commenced on 1 January 2012.  This case is ostensibly the first prosecution of an officer under the new harmonised WHS laws.

​It has become our recent practice to dust off the crystal ball and look ahead to what we expect will be the ‘big five’ insolvency issues.   

Below is a retrospective assessment of how we did last time and our best guess as to what will dominate the next 12 months.

The big issues for 2013

Our ‘top five’ picks for last year were:

Stewart v ATCO Controls Pty Ltd (in Liq) [2014] HCA 15

The High Court has unanimously confirmed the position originally set out in In re Universal Distributing Co Ltd (In Liq) (1933) 48 CLR 171, finding that a secured creditor may not have the benefit of a fund created by a liquidator without the liquidator's costs and expenses of creating that fund first being met.

In our September 2013 Insolvency Update ‘The Early Bird Gets the Worm: Tax Office Recovers Debt Before Foreign Creditors’, we highlighted the decision of De Ackers (as joint foreign representative) v Saad Investments Company Limited; In the matter of Saad Investments Company Limited (in official liquidation) [2013] FCA 738 (Saad case).

The decision in White & Anor v Spiers Earthworks Pty Ltd (SE) & Anor has examined the vesting provisions contained within the Personal Property Securities Act 2009 (Cth) (PPSA) and confirmed their effect where one party asserts to have an unperfected Security Interest at the time of an event of insolvency according to section 267 (2) of the PPSA.

Background

The High Court has recently affirmed the existence and scope of a liquidator’s equitable lien in Stewart v Atco Controls Pty Limited (in liquidation) [2014] HCA 15.

A liquidator is entitled to an equitable lien for the costs, charges and expenses (including the liquidator’s remuneration) incurred by the liquidator in realising assets brought into the estate, which lien takes priority over a creditor’s security: Re Universal Distributing Co Ltd (in liquidation) [1933] HCA 2.