The eagerly anticipated judgment in Amerind (Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20) was handed down by the High Court yesterday after the High Court heard the matter in early February of this year. Mills Oakley acts for the Receivers who sought the directions given by the Court.

In three separate judgments, the High Court dismissed the appeal by Carter Holt Harvey, with the key findings as follows:

Key takeaways

Will a Court order security for costs against a liquidator with litigation funding? Not always, as a recent decision of the NSW Supreme Court made clear.

Background

The defendant was the director of a company (Commercial Indemnity Pty Ltd or ‘Commercial Indemnity’) which provided agency services for commercial and industrial rental and petroleum bonds.

The Insolvency Law Reform Act 2016 (Cth) (ILRA) introduced a range of measures intended to better inform and arm creditors in relation to external administrations and bankruptcies generally, but also specifically in the contentious area of practitioner remuneration. Although many of the reforms do appear to be changing the dynamics in disputes about remuneration, it is far less clear that the reviewing liquidator position is being utilised in corporate insolvency.

This week’s TGIF considers Re GGA Lifestyle Pty Ltd (Administrators Appointed); Ex Parte Woodhouse [2019] WASC 167, where the Supreme Court of Western Australia clarified that a voluntary administrator of a company in administration is able to claim costs of care, preservation and realisation of partnership assets of the company in administration through an equitable lien in the same way liquidators can.

What happened?

It’s tempting for a company director to not respond to a liquidator’s request to produce financial records if they contain incriminating material, but is it wise?  

In Lock, In the matter of Cedenco JV Australia Pty Ltd (in liq) (No 3) [2019] FCA 879, the Federal Court ordered liquidators John Sheahan and Ian Lock (Liquidators) to repay approximately AU$1.9 million (or 30%) of the remuneration they drew in their role as administrators and liquidators of SK Foods Australia Pty Ltd (in liquidation), Cedenco JV Australia Pty Ltd (in liquidation) and SS Farms Australia Pty Ltd (in liquidation).

The Court also ordered that the Liquidators:

On 19 June 2019, the High Court delivered its much anticipated decision in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20.

For some time now, there has been uncertainty in Australian insolvency law about whether or not insolvency practitioners should apply the statutory priority regimes established by sections 433, 566 and 561 of the Corporations Act 2001 (Cth) when distributing the assets of a “trading trust”. The decision of the New South Wales Supreme Court in Re Independent Contractor Services (Aust) Pty Ltd (In liq) [No 2] (2016) 305 FLR 222, and the myriad of cases that followed it, suggested that the answer was “no”.

The Government has now announced its intention to proceed with the introduction of a bill to establish a farm debt mediation scheme, based in many respects on comparable New South Wales legislation. It is important for secured lenders to farming enterprises to consider in advance the implications of the bill and the necessary changes to product design, documentation, client relationship management and enforcement processes which may be required.

The scheme is intended to provide for fair, equitable and timely resolution of farm debt issues with two key objectives: