Under section 449E(2) of the Corporations Act 2001 (Cth), the Court may review the remuneration of the administrator of a company on the application of the administrator. In the recent decision of Paul’s Retail Pty Ltd v Morgan, the New South Wales Court of Appeal considered the issue of whether an administrator could be precluded from access to the abovementioned statutory provision for the review by the Court of remuneration already determined.

The Facts

In an application to wind up a BVI company the BVI Court re-stated the rules on when a foreign judgment creates an issue estoppel. Following The Sennar [1985] 1 WLR 490 the Court found that there would be an estoppel where a foreign judgment is (1) of a court of competent jurisdiction; (2) is final and conclusive; and (3) on the merits.

The High Court of Australia has now had the final say in the ongoing saga of the restaurant tenant who leased premises at Crown and was told that if it carried out high quality refurbishments of the premises, then it would be ‘looked after at renewal time’. When it came to the expiry of the term of the lease, the landlord required the tenant to vacate the premises.

Legal principles

On 1 June 2016 the Victorian Court of Appeal delivered its judgment in Timbercorp Finance Pty Ltd (In Liquidation) (Timbercorp) v Collins (Collins) and Tomes (Tomes) [2016] VSCA 128, the latest in a string of Timbercorp cases.

The latest decision was preceded by a class action which went all the way to the High Court in which the investors lost their claim against Timbercorp for misleading representations.

In France, when bankruptcy proceedings are instituted against a party involved in a pending arbitration it can result in conflicts between the applicable arbitration and insolvency rules. In that context, an arbitral tribunal sitting in France may be confronted with determining the extent to which they must defer to mandatory insolvency rules.

In 2008, Harvey, an experienced businessman, guaranteed a debt owed to Dunbar Assets plc (Dunbar).  Dunbar subsequently served a statutory demand on Harvey in 2011 for payment under the guarantee.

In 2012, Harvey applied, unsuccessfully, to set aside the demand in the County Court on the ground of promissory estoppel.  However, the demand was subsequently set aside by the Court of Appeal on a completely unrelated ground.

The case of D/S Norden A/S v Samsun Logix Corp & Ors [2009] EWHC 2304 (Ch) concerned international co-operation in insolvency proceedings under the UNCITRAL model law on cross-border insolvency. S was subject to insolvency proceedings in Korea. The English court, having recognised the Korean insolvency proceedings, had granted a stay on creditors issuing proceedings against S and its property.

An agreement to pay off part of a judgment debt owed jointly with others will not of itself amount to consideration sufficient to prevent a creditor going against a debtor for the unpaid balance of the judgment.

The defendant supplied drink to the owner of a club, the cost of which was secured by a charge over the club premises. The owner wished to re-finance his debt to the defendant and took a remortgage with the claimant to be secured as a fist legal charge on both the club and the owner’s house. Part of the remortgage monies were paid to the defendant in partial satisfaction of the sums outstanding. Both the claimant and defendant were granted legal charges over the house.

The Eleventh Circuit has revisited the question of when a debtor may be judicially estopped from pursuing a civil lawsuit due to his or her failure to disclose the claims forming the basis of the lawsuit in their bankruptcy. Judicial estoppel is an equitable doctrine intended to protect courts against parties who seek to manipulate the judicial process by changing their legal positions to suit the exigencies of the moment.