In brief
The courts were busy in the second half of 2021 with developments in the space where insolvency law and environmental law overlap.
In Victoria, the Court of Appeal has affirmed the potential for a liquidator to be personally liable, and for there to be a prospective ground to block the disclaimer of contaminated land, where the liquidator has the benefit of a third-party indemnity for environmental exposures.1
This week’s TGIF considers the decision of Wallace (Liquidator), in the matter of Avestra Asset Management Ltd (In Liq) v Dempsey [2021] FCA 1643 in which the Court granted liquidators leave to amend their pleading following a mistake in the naming of the plaintiff.
Key Takeaways
It is uncontroversial that:
Industry insolvencies are expected to increase in the construction industry in 2022. I will discuss in this article how Project Trusts will impact affected parties.
The legislation giving effect to Trusts, the Building Industry Fairness (Security of Payment) Act 2017(BIFA), was initially based on the establishment of ‘Project Bank Accounts’ (PBAs).
In its recent decision in Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd v Metal Manufacturers Pty Limited [2021] FCAFC 228, the Full Court of the Federal Court of Australia (the Court) held that statutory set-off, under section 553C(1) of the Corporations Act 2001 (Cth) (theAct), is not available to a creditor in respect of a liquidator’s claim against that creditor for the recovery of an unfair preference under s 588FA of the Act.
In Short
The Situation: In the recent decision of Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd v Metal Manufacturers Pty Limited [2021] FCAFC 228, the Full Court of the Federal Court of Australia considered the availability of mutual set-off provisions in s 553C the Corporations Act 2001 (Cth) as a defence to unfair preference claims.
For some time, controversy has surrounded the question as to whether unsecured creditors of an insolvent company can utilise set-off under s 553C of the Corporations Act 2001 (Cth) (Act) against unfair preference claims.
In the case of Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025 (Anchorage v Sparkes), the Supreme Court of NSW considered the obligations of company officers to sophisticated commercial lending entities, and whether company officers could be personally liable for making misleading statements.
Significance
Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd v Metal Manufacturers Pty Limited [2021] FCAFC 228.
In a resounding judgment delivered last week, the Full Federal Court has confirmed that a statutory set-off under section 533C is not available to a defendant in unfair preference proceedings.
Key Takeaways
For some time, the reliance on section 553C of the Corporations Act 2001 (Cth) (Act) as a "set-off" defence to an unfair preference claim, under section 588FA of the Act, has caused much controversy in the insolvency profession. Defendants of preference claims loved it, liquidators disliked it and the courts did not provide clear direction about its applicability – until now.