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    Anti-phoenixing laws demystified: The Victorian Supreme Court considers the creditor-defeating disposition regime
    2022-07-05

    In Re Intellicomms Pty Ltd (in liq) [2022] VSC 228, it was determined that a sale agreement was a creditor-defeating disposition within the meaning of section 588FDB of the Corporations Act 2001 (Cth) (Act) and voidable pursuant to section 588FE(6B) of the Act.

    Filed under:
    Australia, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Gadens, Australian Securities and Investments Commission, Corporations Act 2001 (Australia)
    Authors:
    Scott Couper
    Location:
    Australia
    Firm:
    Gadens
    Failure to launch: Liquidators fail to establish abuse of process in public examination summonses
    2022-06-08

    Public examination can be a useful tool for parties in a liquidation to obtain information about matters relating to a company’s affairs. In the matter of Jewel of India Holdings Pty Ltd ACN 141 963 813 (in liquidation) [2022] NSWSC 356, the Court considered whether summonses for public examination, that were issued by the former owner of the business to the liquidators and former administrators of Jewel Holdings, constituted an abuse of process.

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Litigation, Gadens, Corporations Act 2001 (Australia)
    Authors:
    Guy Edgecombe
    Location:
    Australia
    Firm:
    Gadens
    Trying to pull a fast one: An attempt to use family law orders to defeat creditors
    2022-06-08

    Family law processes cannot be used to defraud creditors. In Re ZH International Pty Ltd (in liq), the Supreme Court of New South Wales held that transfers of property from a company to the directors and shareholders of that company as part of family law proceedings were voidable transactions under section 588FF of the Corporations Act 2001 (Cth) where the company was not a party to the orders and the orders did not require the company to make the transfers.

    Background

    Filed under:
    Australia, Company & Commercial, Family, Insolvency & Restructuring, Litigation, Gadens, Corporations Act 2001 (Australia)
    Authors:
    Scott Couper
    Location:
    Australia
    Firm:
    Gadens
    Optimising voluntary administration: In the matter of Merchant Overseas Logistics Pty Ltd [2022] VSC 154 opens the door for expediated creditor returns through secondary voluntary administration.
    2022-06-08

    The Supreme Court of Victoria has considered the viability of allowing a company to enter a second voluntary administration after going into liquidation following a failed DOCA. The Court considered that rather than maintain a state of liquidation, the secondary voluntary administration process would better serve the best interests of creditors and optimise the efficiency of the restructuring process. The decision serves as a useful guide to the considerations and orders appropriate for successfully arguing a company out of liquidation.

    Background

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Gadens, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Gadens
    Missed it by that much: The FCA decides the proper construction of the UCPR in relation to online filing
    2022-05-19

    In a recent case involving a default judgment to recover the sum of an outstanding loan, the Federal Court of Australia considered whether it had jurisdiction to set aside a bankruptcy notice issued against the guarantor of the loan and whether it had jurisdiction to extend the time for compliance with the bankruptcy notice.

    Background

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Gadens
    Location:
    Australia
    Firm:
    Gadens
    The Court’s willingness to extend the convening period for a meeting of creditors where the administration is large and complex
    2022-05-19

    In Algeri, in the matter of WBHO Australia Pty Ltd (Administrators Appointed) [2022] FCA 169, the Federal Court heard the second application by the administrators who were seeking an extension to the convening period for the second meeting of creditors, which pursuant to section 439A(5) of the Corporations Act 2001 (Cth) (the Act) was set to expire on 24 March 2022.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Gadens, Financial Conduct Authority (UK), Corporations Act 2001 (Australia)
    Authors:
    Scott Couper
    Location:
    Australia
    Firm:
    Gadens
    Working out your priorities - how employee creditors claims were able to trump research and development tax refunds
    2022-05-19

    In the recent case of In the matter of Spitfire Corporation Limited (in liquidation) and Aspirio Pty Ltd (in liquidation) [2022] NSWSC 340, the NSW Supreme Court has provided clarity on the order of priority for employee debts and secured creditor claims, where the key asset is an entitlement to tax refunds for research and development.

    This matter involved the liquidators of Spitfire Corporation seeking directions under s 90-15 of the Insolvency Practice Schedule (Corporations) that:

    Filed under:
    Australia, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Gadens, Corporations Act 2001 (Australia), Personal Property Securities Act 2009 (Australia)
    Location:
    Australia
    Firm:
    Gadens
    How to avoid contaminating an insolvency appointment: when a disclaimer of land may be set aside
    2022-04-21

    In March 2019, Liquidators were appointed to The Australian Sawmilling Company Pty Ltd (TASCO) by way of a creditors’ voluntary winding up. TASCO owned a large lot of contaminated land – there were stockpiles of construction and demolition waste resulting from a former licensee conducting a materials recycling business.

    Filed under:
    Australia, Environment & Climate Change, Insolvency & Restructuring, Litigation, Tax, Gadens, Mediation, Corporations Act 2001 (Australia)
    Authors:
    Barbara-Ann Sim
    Location:
    Australia
    Firm:
    Gadens
    Was there a foreseeable risk of harm? Supreme Court of Western Australia finds directors were in breach of their statutory and common law directors’ and officers’ duties
    2022-04-21

    Defendants to a proceeding related to a breach of an Asset Sale Agreement, successfully joined directors to the action by way of a third party notice, seeking damages for liability incurred where those directors had breached their directors obligations to discharge their duties with due care and diligence (Section 180(1) of the Corporations Act 2001 (Cth)).

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Gadens, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Gadens
    The importance of being cautiously aware of contractual terms relating to insolvency termination events
    2022-04-21

    In the matter of Carna Group Pty Ltd v The Griffin Coal Mining Company (No 6) [2021] FCA 1214, the Court held that Griffin Coal Mining Company (Griffin) was insolvent, without having to prove so under the section 95A Corporations Act 2001 (Cth) (Corporations Act). This was in accordance with a contractual provision where it provided specific circumstances where insolvency could be proven and as such a breach had occurred and the contract could be terminated.

    Filed under:
    Australia, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Gadens, Financial Conduct Authority (UK), Corporations Act 2001 (Australia)
    Authors:
    Guy Edgecombe
    Location:
    Australia
    Firm:
    Gadens

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