Section 163 gives the trustee the broad power to examine the bankrupt, any person who would be reasonably thought to know the affairs of the bankrupt, or any person who is or has been an agent, clerk, officer, director or employee with respect to the bankrupt or the bankrupt’s dealings. Essentially, this section gives the trustee the power to examine any person who is capable of providing information on the bankrupt.
The waiver of Solicitor/Client privilege by a bankrupt company is a difficult matter and one distinct from the waiver of such privilege by an individual bankrupt. As there is nothing in the BIA that either gives or denies a trustee the right to waive solicitor/client privilege on behalf of a company,Hahaha yes with a lot of candles! the courts have had to turn to the common law for guidance on the issue.
- Ex ParteOrders
There are a number of ethical issues facing lawyers today in bankruptcy and insolvency litigation. One of the main issues is the level of disclosure in ex parte applications, such as those for a stay of proceedings in order to file a proposal under the BIA or a plan under theCCAA.
The 2010 decision of the Ontario Court of Appeal in Murphy v. Sally Creek Environs Corp. (Trustee of) considered the role of a trustee in bankruptcy as an officer of the court and its obligation to act fairly and with integrity throughout bankruptcy proceedings.
The recent Ontario Court of Appeal decision in Murphy v Sally Creek Environs Corporation, 2010 ONCA 312 (“Sally Creek”) is a cautionary tale for Trustees in bankruptcy (“Trustees”) and the counsel who represent them.1 In that case, the Trustee’s fees and those of its legal counsel were drastically reduced on a taxation, a cost award was made against the Trustee personally and the Trustee’s conduct was impugned in a detailed decision of the Bankruptcy Registrar and the Court of Appeal.
In Ultra Information Systems Canada Inc. v. Pushor Mitchell LLP (2008 Carswell BC 1537 (B.C.S.C.)), one of the corporate Defendants had become bankrupt. There was an issue as to whether some of the bankrupt Defendant’s production documents were privileged. The Court considered whether the Trustee in Bankruptcy could waive the previously claimed solicitor and client privilege and therefore produce the documents.
The Civil Law (Miscellaneous Provisions) Act 2011 was signed into law by the President on 2 August 2011. The Act provides for certain provisions, concerning private security services, bankruptcy and family mediation services, to come into operation on such days as the Minister for Justice and Equality, by order, appoints. All other provisions of the Act came into force on 2 August.
The Act introduces a number of important reforms across a broad range of areas, including:
In a series of cases the High Court has:
In January 2010 an interim examiner was appointed to Missford Limited, which operated the Residence Club, a private members club in St. Stephen’s Green.
In a written judgment on the costs and expenses of the interim examiner, the court held that the interim examiner “simply did more with the best of motives than his warrant permitted”. The court proceeded to refuse the interim examiner’s application for remuneration in respect of any work carried out in excess of his statutory powers.
Bell Lines Limited (in Official Liquidation)
LK Shields Solicitors acted for the Secretary of State for the Department of Business Innovation and Skills of the Government of the United Kingdom (the Secretary of State) in a Supreme Court Appeal which raised a succinct technical point in a liquidation.
INTRODUCTION
Many practitioners may not think of stamp duty as a particular risk when taking on a liquidation or a receivership and there is limited published guidance on the topic. Against a background of an increasing number of business failures including companies operating in property development it is likely that liquidators and receivers will be faced with stamp duty issues on a more frequent basis. The purpose of this article is to identify some areas where practitioners may encounter stamp duty issues.
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