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    Is an owner able to terminate a lease when a tenant has entered into a Deed of Company Arrangement (DOCA)?
    2016-01-21

    With the number of companies entering external administration on the rise and the crucial post-Christmas retail trading period nearing an end, it is important for owners to ensure that they fully understand what rights they have to terminate a lease and recover unpaid rent if a tenant goes into external administration and its creditors then vote to enter into a Deed of Company Arrangement (DOCA).

    If a tenant is in arrears and a DOCA is in place, can an owner exercise its contractual right to terminate the lease?

    Filed under:
    Australia, Insolvency & Restructuring, Real Estate, Barry Nilsson
    Location:
    Australia
    Firm:
    Barry Nilsson
    New Notice Requirements to Assign Receivables
    2015-12-17

    The assignment of debts is common in many transactions - from the sale of businesses to restructuring scenarios.

    Assigning a debt requires written notice of the assignment being given to the debtor.  Under conveyancing legislation this notice can be given by either the assignor or assignee (for example, section 12 Conveyancing Act (NSW)).

    Additional rules now apply for debts captured by the Personal Property Securities Act (PPSA).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Real Estate, Addisons, Accounts receivable, Debt
    Authors:
    Nicole Tyson
    Location:
    Australia
    Firm:
    Addisons
    Clarity at last: Liquidators and receivers not required to account to the ATO under s 254 without an assessment
    2015-12-10

    Today, by a majority of 3-2, the High Court of Australia in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48 confirmed that s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) does not impose an obligation on trustees (including administrators, receivers and liquidators) to retain sufficient moneys from the trust fund to pay tax unless a relevant assessment has been issued.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Real Estate, Tax, King & Wood Mallesons, High Court of Australia
    Authors:
    Samantha Kinsey
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    How secure are your terms of sale?
    2015-06-05

    The important role of standard terms of sale

    The standard terms of sale of a supplier can form part of a credit application by its customer, appear on sales invoices or order forms or on the supplier’s website and there are many other combinations of documentation and procedures that can be used to establish written evidence of the terms of the contract between the supplier and its customer. Just as important, there are many reasons why these combinations may come unstuck.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Real Estate, Johnson Winter Slattery, Contractual term
    Authors:
    Craig Wappett
    Location:
    Australia
    Firm:
    Johnson Winter Slattery
    Representations not made as to unobstructed ocean views & the effect of bankruptcy on deposits
    2015-05-05

    When a buyer’s characteristics can determine whether they are misled about the features of a property

    Orchid Avenue Pty Ltd v Hingston & Anor [2015] QSC 42 per McMurdo J

    This case highlights the importance of buyers making their own enquiries when purchasing properties for reasons that relate to features external to the property, such as ocean views. 

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, HopgoodGanim, Bankruptcy
    Authors:
    Anthony Pitt
    Location:
    Australia
    Firm:
    HopgoodGanim
    Can avoiding potential litigation be considered an uncommercial transaction?
    2015-05-13

    When a company goes into liquidation liquidators will often try to ‘claw back’ uncommercial transactions. The recent case of 640 Elizabeth Street Pty Ltd (in liq) & Ors v Maxcon Pty Ltd [2015] VSC 22 considered whether securing the indebtedness of a third party to avoid potential litigation exposure is an uncommercial transaction. 

    Background facts

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Real Estate, McInnes Wilson Lawyers
    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
    To withhold tax or not to withhold? That is the liquidator’s question!
    2014-05-09

    The recent decision of Australian Building Systems Pty Ltd v Commissioner of Taxation [2014] FCA 116 involves a significant development in the taxation collection obligations of liquidators involved in winding up a company.

    In this Alert, Special Counsel Justin Byrne and Solicitor Rachael Nyst discuss the implications of the case in regard to the need to retain an amount from sale proceeds of a property in order to meet capital gains tax (CGT) liabilities.

    Key points

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Tax, HopgoodGanim, Capital gains tax, Liquidator (law), Commissioner of Taxation (Australia)
    Authors:
    Luke Mountford
    Location:
    Australia
    Firm:
    HopgoodGanim
    Extra powers for liquidators – how will this affect your lease
    2014-04-28

    As a business owner or company director, there are many elements you need to consider on a day to day basis to ensure your business runs smoothly. If you lease your premises it is important to understand your rights and what risks you face as a tenant.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Coleman Greig Lawyers, Landlord, Leasehold estate, Liquidation, Liquidator (law)
    Authors:
    Andrew Grima , Dean Claughton
    Location:
    Australia
    Firm:
    Coleman Greig Lawyers
    Farm debt mediation – how to make it successful
    2014-03-04

    The Farm Debt Mediation Act 2011 (Vic) (the Act) has been in operation for some two years and is in large part modelled on New South Wales legislation which has been operative since 1994. Since the commencement of the Act in Victoria, over 180 mediations have taken place with 95% of those mediations resulting in a settlement agreement between the parties.

    Filed under:
    Australia, Arbitration & ADR, Banking, Insolvency & Restructuring, Real Estate, Holding Redlich, Debt, Mediation, Default (finance)
    Authors:
    Kylie Hall , Howard Rapke
    Location:
    Australia
    Firm:
    Holding Redlich

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