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    Does a bankrupt beneficiary’s effective control of a discretionary trust transform their interest into property?
    2017-03-24

    This week’s TGIF considers Fordyce v Ryan & Anor; Fordyce v Quinn & Anor [2016] QSC 307, where the Court considered whether a beneficiary’s interest in a discretionary trust amounted to ‘property’ for the purposes of the Bankruptcy Act 1966 (Cth).

    BACKGROUND

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Bankruptcy, Shareholder, Interest, Beneficiary, Liquidation, Vesting, Discretionary trust, Bénéfice, Unit trust, Trustee, Federal Court of Australia
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley , Sam Delaney , Estelle Blewett , Michelle Dean
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Trust companies in liquidation - dealing with priority debts
    2016-07-12

    The decision in In the matter of Independent Contractor Services (Aust) could mean more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Costs in English law, Audit, Beneficiary, Debt, Withholding tax, Liquidation, Liquidator (law), Discretionary trust, Australian Taxation Office, Corporations Act 2001 (Australia), Trustee, New South Wales Supreme Court
    Authors:
    Mikhail Glavac
    Location:
    Australia
    Firm:
    Clayton Utz
    Does the bankruptcy of a personal trustee or appointor of a discretionary trust expose the trust assets?
    2013-07-08

    In an important decision for the large number of discretionary trusts in Australia, the Supreme Court of New South Wales has considered whether a family trust structure is a sufficiently robust firewall to protect the family trust assets against claims by a trustee in bankruptcy appointed to the personal Trustee or Appointor of a family trust.

    The decision is Lewis v Condon; Condon v Lewis [2013] NSWCA 204 which was handed down on 4 July 2013 by the Court of Appeal.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Cordato Partners, Bankruptcy, Discretionary trust, Trustee
    Authors:
    Anthony J Cordato
    Location:
    Australia
    Firm:
    Cordato Partners
    Supreme Court leaves door open to trust-busting litigation
    2016-04-20

    ​The Supreme Court has ruled that some family trust structures will be ineffective in protecting assets from claims by former partners and, potentially, other creditors.

    The decision in Clayton v Clayton has implications for everyone who establishes trusts to manage relationship property, estate planning and insolvency risk.

    The facts

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Chapman Tripp, Discretionary trust, Supreme Court of the United States
    Authors:
    Matt Sumpter , Laura Fraser
    Location:
    New Zealand
    Firm:
    Chapman Tripp
    Hong Kong court tackles Beddoe applications and Bartlett clauses
    2014-06-10

    The case of Highmax Overseas Ltd v Chau Kar Hon Quinton considers the interaction of two issues very relevant to trustees (particularly trustees of trust funds including company shares):Beddoe applications and Bartlett clauses. Reported Court decisions on both issues are thin on the ground, so this case provides helpful insight.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Herbert Smith Freehills LLP, Discretionary trust, Trustee
    Authors:
    Gareth Thomas , Richard Norridge
    Location:
    Hong Kong
    Firm:
    Herbert Smith Freehills LLP
    Capita Trustees Ltd, RS, NS, the Trustees in Bankruptcy of RS - in the matter of the Dunlop Settlement [2013] JRC 029
    2013-03-28

     

    Case Summary

    The case of Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS - In the matter of the Dunlop Settlement [2013] JRC 029 concerns an application by Capita Trustees Limited (Capita) in its capacity as trustee of the Dunlop Settlement (the Trust) for approval to it entering into an agreement intended to settle various claims made against the Trust by creditors (the Agreement), the net effect of which would be to exhaust the assets of the Trust.

    The Facts

    Filed under:
    Jersey, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Ogier, Bankruptcy, Discretionary trust, Trustee
    Location:
    Jersey
    Firm:
    Ogier
    Insolvent transactions with shareholders set aside
    2017-12-12

    Jollands v Gull concerns an application by the liquidators of a company to set aside insolvent transactions. The transactions involved funds from the sale of the company's business being paid, via the company's accountant, to three minority shareholders, which then transferred their shares to the respondent shareholders (or in one case, a respondent shareholder's family trust). The respondents' current accounts were in credit at the time.

    Filed under:
    New Zealand, Company & Commercial, Insolvency & Restructuring, Litigation, Buddle Findlay, Shareholder, Liquidation, Discretionary trust
    Authors:
    Bridie McKinnon , Oliver Gascoigne , Matthew Triggs , Myles O'Brien , Susan Rowe , Peter Niven , David Perry , Scott Abel , Kelly Paterson , Scott Barker , Willie Palmer , Jan Etwell , David Broadmore
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Insolvent gifts to trustees
    2017-06-29

    In Official Assignee v Carrim the High Court considered the concept of a "gift" in the Insolvency Act 2006.

    The Official Assignee sought to cancel insolvent gifts made by the bankrupt to complete a property purchase by a family trust settled by the bankrupt and Ms Carrim, the bankrupt's partner (as trustees).  The High Court considered:

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay, Bankruptcy, Deed, Tax deduction, Discretionary trust, Trustee
    Authors:
    Bridie McKinnon , Matthew Triggs , Myles O'Brien , Kelly Paterson , Peter Niven , Scott Abel , Willie Palmer , David Broadmore , Susan Rowe , Scott Barker , David Perry , Jan Etwell
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Trust busting - a new line of attack
    2018-01-15

    The Pugachev tale

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Addleshaw Goddard LLP, Liquidation, Discretionary trust, Insolvency Act 1986 (UK)
    Authors:
    Richard Levett
    Location:
    United Kingdom
    Firm:
    Addleshaw Goddard LLP
    Capita Trustees Ltd, RS, NS, the Trustees in Bankruptcy of RS - in the matter of the Dunlop Settlement [2013] JRC 029
    2013-03-28

     

    Case Summary

    The case of Capita Trustees Ltd, RS, NS, The Trustees in Bankruptcy of RS - In the matter of the Dunlop Settlement [2013] JRC 029 concerns an application by Capita Trustees Limited (Capita) in its capacity as trustee of the Dunlop Settlement (the Trust) for approval to it entering into an agreement intended to settle various claims made against the Trust by creditors (the Agreement), the net effect of which would be to exhaust the assets of the Trust.

    The Facts

    Filed under:
    Jersey, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Ogier, Bankruptcy, Discretionary trust, Trustee
    Location:
    Jersey
    Firm:
    Ogier

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