In the matter of One.Tel Limited (in liquidation) [2014] NSWSC 1892

In brief: The Full Federal Court has held that a liquidator has no obligation to retain monies on account of tax until a notice of assessment has been issued. While the decision is a win for taxpayers (and creditors of insolvent entities), it remains to be seen how the Commissioner of Taxation will respond. Partner Katrina Parkyn (view CV), Senior Associate Joanne Langford and Associate Jay Prasad report on the decision.

On 8 October 2014 the Full Court of the Federal Court delivered judgment in favour of the liquidators in the much anticipated Australian Building Systems appeal¹ (Appeal).

Barring the Commission of Taxation seeking special leave to appeal to the High Court, liquidators (and other trustees, including receivers and managers) can now take comfort that they are not personally liable for failing to hold sufficient funds for any anticipated CGT liability, in the absence of a notice of assessment.

A recent Federal Court decision has confirmed that liquidators of a corporate trustee are entitled to be remunerated out of the trust assets for costs incurred in monitoring and investigating claims made against the trust.

The recent appeal decision of the Full Court of the Federal Court in ASIC v Franklin (liquidator) and ors [2014] FCAFC 85 reinforces the importance of the independence of liquidators and also provides further guidance on the contents of declarations of independence, relevant relationships and indemnities (known as a “DIRRI”) by administrators.

In the last week, two cases have been handed down regarding funds held on trust in liquidations and liquidators’ fees.

Saker, in the matter of Great Southern Limited [2014] FCA 771 (Great Southern) considered whether funds from floating charge assets held separately for satisfaction of priority employee entitlements were held on trust, and the impact on the liquidators’ fees and secured creditors’ recoveries in the absence of such a trust.

Key Points:

Courts will remove liquidators where there's apparent bias even where it might cause significant inconvenience and expense to the liquidation.

The Full Court of the Federal Court has found that a conflict of interest arose in circumstances where liquidators were required to investigate transactions with an entity that also refers work to the liquidators (ASIC v Franklin; Re Walton Construction Pty Ltd [2014] FCAFC 85).

Secured creditors should not allow a liquidator to sell a secured asset without first:

In brief

Key Points:

Provided a liquidator is acting properly in conducting proceedings or realising assets, he or she is entitled to be paid fees in priority to a secured creditor.

The High Court has recently reaffirmed the principle that a liquidator is entitled to be paid his or her costs and expenses properly incurred in realising assets of a company in priority to a secured creditor. This is so even if the fund realised was derived from an action brought against a secured creditor (Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15).