WHO SHOULD READ THIS

• Industry participants in the construction sector.

THINGS YOU NEED TO KNOW

• The deadline for comments on the Improving Bankruptcy and Insolvency Laws Proposals Paper is 27 May 2016.

WHAT YOU NEED TO DO

The NSW Supreme Court recently handed down its decision in Re HIH Insurance Limited (In Liq)^[1]. This long-running saga began with the collapse 15 years ago of Australia’s (then) second largest insurance company, HIH Insurance Limited, and has since seen a royal commission, the imprisonment of various senior management figures, and losses totalling more than $5 billion.

This week’s TGIF considers the decision of Crowe-Maxwell v Frost [2016] NSWCA 46 in which the Court held that a liquidator did not discharge his onus of proving relevant transactions were unreasonable director-related transactions.

BACKGROUND

CGU Insurance Limited v Blakeley [2016] HCA 2

Background

The High Court recently heard an appeal brought by CGU Insurance from a decision in the Supreme Court of Victoria, challenging a declaration that CGU was liable to indemnify Akron Roads Pty Ltd (in liquidation) (“Akron”) in interrelated proceedings.

Victorian Supreme Court rules that the appointment of an administrator was invalid, void and of no effect because the directors did not genuinely believe the company was insolvent and appointed the administrator for an improper purpose.  

BACKGROUND

Introduction

In most cases, the precondition for the appointment of a liquidator and the winding up of a company by a court is that a company is insolvent. However, in some cases courts will make these orders in the context of a shareholders dispute where there is a management deadlock or a breakdown in trust and confidence between shareholders. Additionally, a court may make these orders where there has been serious fraud or mismanagement in the conduct of a company’s affairs.

Relevant law

WHAT HAPPENED?

Rahan Constructions Pty Ltd (Rahan) was contracted to undertake commercial construction and other works in about April 2012.  On or about this date, Rahan entered into a credit account with Asset Flooring Pty Ltd (Asset Flooring).  Rahan’s obligations under this credit account were personally guaranteed by the respondent, Mr North.

On 30 July 2013, Rahan was wound up by order of the court and Asset Flooring sought to enforce the guarantee for the outstanding balance owing under the credit account.

After failing to sell Dick Smith as a going concern, receivers Ferrier Hodgson are now trying to sell the company’s New Zealand and Australian assets, including customer databases.  But does the Privacy Act 1993 allow it?

The legal position

A receiver or liquidator is bound by the provisions of the Privacy Act 1993.

In December 2015, the Department of Housing and Public Works Queensland released a discussion paper seeking feedback on the issue of security of payment in the building and construction industry.  The paper seeks feedback from the widest possible cross section of the building and construction industry on the following identified issues:

Section 440D imposes a stay on “proceedings in a court” against a company whilst it is in administration under Part 5.3A of the Corporations Act. It is well established that the term “proceedings in a court” does not include an arbitration proceeding: see Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 1305 at [42] (Hammerschlag J). Notwithstanding this, can the Court use its general power to make orders under s447A to extend the reach of s440D in order to impose a stay on an arbitration against a company in administration?