Six month extensions to convening periods should not be seen as a fait accompli, particularly if the administrator's application is opposed.
There is a commonly held belief that courts will readily grant an administrator's application for an extension to the convening period. This might have been true once, but it is fast turning into an urban myth, judging by two recent decisions in the Federal Court.
In the recent decision of ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234 (ActiveSuper), the Federal Court considered an application by ASIC brought pursuant to s 472(2) of the Corporations Act 2001 (Cth) (Act) to appoint provisional liquidators to a company MOGS Pty Ltd (MOGS).
Summary
In the recent decision of Re Willmott Forests Ltd,1the Victorian Court of Appeal held that a liquidator could disclaim a lease under the Corporations Act (Act).
It is quite a thing for the law to remove from owners the rights normally associated with ownership and to confer them on receivers.
Which is why, although receivers are allowed considerable discretion in the exercise of their duties, they are also subject to oversight by the courts.
So how much freedom of manoeuvre do they have, and when will the court intervene? We look at a recent decision1 in the Australian Federal Court and consider its relevance for New Zealand insolvency practitioners.
Upon appointment, a liquidator will generally exercise control of as much of the company’s property as is available, so that it can be realised for the benefit of creditors. However, in some cases, a liquidator may not wish to retain certain property if it is unlikely that such property will provide a return to the liquidation.
The importance of notifications to potential defendants and directors of the insolvent company
The decision in Re Octaviar Administration Pty Ltd (in liq) [2013] NSWSC 786 highlights two key issues for insolvency practitioners:
The Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013 (Regulations) to amend the structure of UK annual reports have been published and laid before Parliament.
The recent Australian Federal Court case of Neeat Holdings (in liq) [2013] FCA 61 considered the issue of whether the liquidator of a trustee company should be permitted to sell trust assets notwithstanding the appointment of a new trustee in substitution for the insolvent trustee company.
The Federal Court found that where a trust deed provides for the cessation of a corporate trustee upon the appointment of an administrator or upon a resolution for its liquidation (and there is no replacement trustee appointed), the corporate trustee retains its right of indemnity and continues as bare trustee but does not have the power to sell the trust assets. However, the Court was persuaded to grant relief to the liquidators of the trustee (who had sold trust assets) on the basis they had not been advised by their solicitors of the disqualification clause and they com
The Facts
In this case the liquidators of Octaviar Administration had obtained an extension to the time for them to bring voidable transaction proceedings under section 588FF(1) of the Corporations Act (Extension Order). Before the expiration of the Extension Order, the liquidators sought a further extension under s588FF(3)(b) or, alternatively, asked the Court to vary the date in the Extension Order pursuant to the Court’s procedural powers under r 36.16 of Uniform Civil Procedure Rules 2005 (NSW) (UCPR).