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    Liquidators of corporate trustees: rights and duties
    2014-12-04

    Liquidators are subject to rights and duties under common law and the Corporations Act 2001 (Cth) (CA).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, McInnes Wilson Lawyers, Secured creditor, Corporations Act 2001 (Australia)
    Authors:
    Alicia Hill , Jessica Patrick
    Location:
    Australia
    Firm:
    McInnes Wilson Lawyers
    The power of receivers to administer trust property under a debenture
    2014-12-05

    The Federal Court has recently handed down a decision that clarifies the power of receivers to administer trust property under a debenture. In Benton, in the matter of Mackay Rural Pty Ltd (Receivers and Managers Appointed) [2014] FCA 1285, the Federal Court confirmed that section 420 of the Corporations Act 2001 (“the Act”) confers upon receivers a power to dispose of trust property, provided that this is necessary for the purpose for which they have been appointed.

    FACTS

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Corrs Chambers Westgarth, Debenture
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Liquidators to disclose referral relationships: DIRRI implications from Walton
    2014-12-05

    It is well-known that liquidators must be independent. If there is a reasonable apprehension that Liquidators lack independence, a Court may remove and replace them pursuant to the Corporations Act 2001 (Cth) (CA).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, McInnes Wilson Lawyers, Corporations Act 2001 (Australia)
    Authors:
    Alicia Hill , Jessica Patrick
    Location:
    Australia
    Firm:
    McInnes Wilson Lawyers
    Extra care needed by directors when acting in transactions involving a position of conflict: Allco Funds Management Limited (Receivers and Managers Appointed) (In Liquidation) v Trust Company (RE Services) Limited (in its capacity as responsible entity and trustee of the Australian Wholesale Property Fund) [2014] NSWSC 1251
    2014-11-18

    This case highlights that the fiduciary duty to avoid conflicts of interest in particular will be strictly adhered to, with questions of fairness or unfairness of the relevant transaction being irrelevant.  Directors are reminded of the need to take great care to manage potential risks when involved in transactions in which they are acting as director of more than one company.  In particular, directors should check the rules in the companies’ constitutions around conflict of interest and if there is any concern, disclose their interest and seek approval of the companie

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Gilbert + Tobin, Conflict of interest
    Authors:
    Rachel Launders , Jane Hogan , Sally Randall
    Location:
    Australia
    Firm:
    Gilbert + Tobin
    Avoid a slip up - the applicability of the slip rule to the time limits imposed on a winding up application
    2014-11-21

    The Supreme Court of Western Australia recently handed down its decision in Soil and Contracting Pty Ltd v Boban Pty Ltd [2014] WASC 402 which confirmed that, notwithstanding the operation of s 459R of the Corporations Act, the slip rule is available to extend the time limit within which a winding up application may be determined.

    SECTION 459R

    Filed under:
    Australia, Western Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Consideration of ‘special federal matter’ within the meaning of s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth)
    2014-11-24

    Turner v Gorkowski [2014] VSCA 248

    Whether application seeking a declaration for or against the title of the trustee to a trustee in bankruptcy under s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is a ‘special federal matter’ within the meaning of s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth).

    On appeal, the Victorian Supreme Court of Appeal transferred a proceeding initiated in the Supreme Court to the Federal Court.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria, Bankruptcy, Vesting
    Authors:
    Andrea L Mapp
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    Extensions of time for liquidator's recovery actions - "shelf orders" to be scrutinised by the High Court
    2014-10-20

    Since BP Australia Pty Ltd v Brown, there has been a practice of Courts across Australia granting "shelf orders", whereby time for voidable transaction recovery actions by a Liquidator under section 588FF is extended "at large".  The Court's power to grant these "shelf orders", however, is to be scrutinised by the High Court in December 2014, in the course of the Octaviar group liquidation.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Baker McKenzie
    Authors:
    David Walter , Peter Lucarelli , Jahan Navidi
    Location:
    Australia
    Firm:
    Baker McKenzie
    Focus: Federal Court rules liquidator needn't account for tax on sale of assets
    2014-10-21

    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.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Tax, Allens, Liquidator (law), Federal Court of Australia
    Authors:
    Katrina Parkyn , Charles Armitage , Martin Fry
    Location:
    Australia
    Firm:
    Allens
    Liquidators' remuneration and expenses - value-based remuneration and closer scrutiny of expenses
    2014-10-23

    On 25 July 2014 and 17 September 2014 respectively, Justice Brereton of the Supreme Court of NSW delivered two related judgments in Re AAA Financial Intelligence Ltd (in liquidation) andRe AAA Financial Intelligence Ltd (in liquidation) (No 2). The decisions deal with the evergreen topic of Liquidator remuneration and expenses.

    Importantly, in fixing the Liquidators' remuneration, Justice Brereton adopted a "value" focussed approach, and discussed the relevance of considering matters beyond simply time spent multiplied by fixed hourly rates. 

    Filed under:
    Australia, United Kingdom, New South Wales, Insolvency & Restructuring, Litigation, Baker McKenzie, New South Wales Supreme Court
    Authors:
    Peter Lucarelli , David Walter , John Anderson , Jahan Navidi
    Location:
    Australia, United Kingdom
    Firm:
    Baker McKenzie
    When do liquidators need to retain money to meet a company's tax liabilities?
    2014-10-24

    A recent decision of the Full Federal Court gives liquidators comfort that they are not required to set money aside to meet the future tax obligations of a company until those obligations have been assessed by the Tax Office. Although liquidators must retain money 'sufficient to pay tax which is or will become due', this obligation only applies to tax liabilities that have been assessed and are presently payable or payable in the future, not to liabilities that might be created by future assessments.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Tax, Allens, Liability (financial accounting)
    Location:
    Australia
    Firm:
    Allens

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