The New South Wales Supreme Court recently confirmed that an insolvent construction contractor is not able to immediately enforce its right to payment of an adjudication decision under the NSW Security of Payment legislation (Building and Construction Industry Security of Payment Act 1999 (NSW)) against another party which has an offsetting claim.

This week’s TGIF considers the recent decision of the NSW Court of Appeal in the Arrium liquidation, where the Court set aside examination orders sought for the purpose of a possible shareholder class action.

Key takeaways

A recent saga played out in the Supreme Court of NSW illustrates why the dispute resolution procedures available to strata owners under the Strata Schemes Management Act 2015 (NSW) make strata title superior to company title.

This is because company title property owners have only the blunt instruments of liquidation and administration available under the Corporations Act 2001 (Cth).

This article analyses how poorly the Corporations Act 2001 (Cth) is equipped to handle disputes between owners of company title properties.

It is said that Sisyphus, the ancient king of Ephyra, is destined for eternity to roll a boulder uphill, only to watch it roll down again. Perhaps Sisyphus should have been a liquidator. One could certainly forgive the liquidator of Aberdeen All Farm Pty Ltd (In Liq) (Aberdeen) for thinking so.

After taking appointment in February 2018, Aberdeen has been embroiled in Supreme Court litigation, by which certain parcels of land were claimed to have been held on trust for Barry McWhinney as a result of an alleged fraud.

The Supreme Court of New South Wales has helpfully given guidance to the liquidators of the RCR Tomlinson Group on a number of unsettled questions that have challenged insolvency practitioners (particularly liquidators of construction companies) when assessing whether certain intangible rights and assets are circulating assets.

The questions include:

This week’s TGIF considers a recent decision of the NSW Supreme Court by which two DOCAs were terminated with the deed fund transferred to liquidators for the ultimate benefit of the secured creditor and, indirectly, the proponent of the deeds.

Key Takeaways

In Caron and Seidlitz v Jahani and McInerney in their capacity as liquidators of Courtenay House Pty Ltd (in liq) & Courtenay House Capital Trading Group Pty Ltd (in liq) (No 2),[1] the New South Wales Court of Appeal was faced with what it described as the ‘classic insolvency conundrum’: how to distribute funds to investors as equally and as fairly as possible where the funds have

In ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton [2020] NSWCA 157, the NSW Court of Appeal clarified the scope of examination and production orders for investigative purposes in a potential shareholder class actions.

The case concerned shareholders of Arrium seeking to utilise the examination process under the Corporations Act 2001 (Cth) to effectively determine the viability of possible claims that could be brought against Arrium Ltd (in liq) (Arrium), its directors and auditor.

On 19 September 2012, the Norton Rose Construction and Engineering team presented a breakfast briefing titled: “Financial Distress in Construction Projects: What happens when the wheels fall off?” 

This briefing identified the warnings signs of insolvency, what steps parties can take to minimise exposure, how best to respond to a party’s insolvency and the options available to prevent insolvency in the first place.

NSW GOVERNMENT CONSIDERS HOW TO PROTECT SUB-CONTRACTORS, 25 OCTOBER 2012

A Discussion and Issues Paper Inquiry into construction industry insolvency in NSW (Issues Paper) has been released and is currently available for comment as the NSW Government attempts to progress its agenda to safeguard the interests of sub-contractors in the construction industry.