In the decision of Re Arcabi Pty Ltd (Receivers & Managers Appointed) (in liq) [2014] WASC 310 the court considered:
- the application of the Personal Property Securities Act 2009 (Cth) (PPSA) to goods being held on a bailment or consignment basis by a company in receivership and liquidation; and
- the receivers’ rights to be indemnified for costs and expenses related to investigating and protecting the property of third parties.
What is the significance?
On 11 September 2014, the Supreme Court of New South Wales delivered judgment in 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.
The decision reminds directors of the risks associated with their involvement in transactions where they are in a position of conflict.
BACKGROUND
In the recent decision, In the matter of Mirabela Nickel Ltd (subject to deed of company arrangement) [2014] NSWSC 836, the NSW Supreme Court has granted leave to the deed administrators under section 444GA of the Corporations Act 2001 (Cth) (Act) to transfer 98.2% of the existing shares of Mirabela Nickel Ltd (Mirabela) to unsecured creditors without the consent of its shareholders.
FACTS
A recent decision has clarified that receivers are entitled to be indemnified and have a lien for their costs in dealing with goods even where the goods belong to third parties.
Senior Associate, Sarah Drinkwater, Associate, Tim Logan and Paralegal, Erin Donald discuss the recent case of AAA Financial Intelligence Ltd (in liquidation) ACN 093 616 445 [2014] NSWSC 1004.
The facts
The applicants were the Liquidators of AAA Financial Intelligence Ltd (in liquidation) (the Company).
In Akers (as a joint foreign representative of Saad Investments Company Ltd) (in official liquidation) (a company registered in the Cayman Islands) v DCT [2014]FCAFC 57 the Federal Court of Australia recently upheld an earlier landmarkdecision concerning the proper construction and interpretation of the Model Lawon Cross Border Insolvency on the United Nations Commission on InternationalTrade Law, made part of Aust
Di Cioccio v Official Trustee in Bankruptcy [2014] FCA 782
Examination of whether shares purchased from a bankrupt’s income below the threshold amount in respect of which he was required to make contributions to his trustee under Division 4B of Part 6 of the Bankruptcy Act 1966(Cth) is within the meaning of “after acquired property” in s 58(1).
In the matter ofMustang Marine Australia Services Pty Ltd [2014] NSWSC 1074, Brereton J of the New South Wales Supreme Court held that there is no principle that before instituting proceedings a liquidator must be satisfied of the material facts that constitute its cause of action, and that absent such satisfaction the proceedings are an abuse of process. As long as proceedings are instituted for bona fide relief claimed and are not doomed then there is no abuse of process.
FACTS
In Sharpe v WH Bailey & Sons Pty Ltd [2014] FCA 921, Justice Gleeson found that the Farm Debt Mediation Act 1994 (NSW) (FDM Act) did not operate to prevent an individual from pursuing their rights under the Bankruptcy Act1966 (Cth), even though those rights may have been related to a farm mortgage. In doing so, Justice Gleeson confirmed that the Bankruptcy Act1966 (Cth) will have priority over the FDM Act where the requirements of section 5 of the FDM Act are met.
FACTS
In the decision of Saker, in the matter of Great Southern Limited[2014] FCA 771, the Federal Court of Australia held that statutory obligations, not trust obligations, require receivers and liquidators to hold and apply funds for the benefit of employees pursuant to s 561 of the Corporations Act 2001 (Cth).
FACTS