Gazing into the crystal ball – when assessing whether a company is insolvent, how far into the future should the Court look?
In Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2),[1] the NSW Supreme Court handed down judgment in two proceedings (which were heard together) arising from the failure of Arrium and its broader corporate group.[2] Of particular interest to insolvency practitioners, the Court was asked to […]
ReadmoreWhen is financial product advice ‘personal’ and not ‘general’ under the Corporations Act 2001 (Cth)?
In Westpac Securities Administration Ltd v Australian Securities Investments Commission,[1] the High Court of Australia considered whether the financial product advice given by Westpac to its existing members was ‘personal advice’ within the meaning of section 766B(3)(b) of the Corporations Act 2001 (Cth) (the Act). Specifically, was the advice given or directed to members in […]
ReadmoreLiquidators beware: pitfalls in admitting proofs of debt
The Federal Court’s decision in Tuscan Capital Partners Pty Ltd v Trading Australia Pty Ltd (in liq)[1] concerns an interlocutory application made by a creditor to review the liquidator’s decision to admit a proof of debt. Background The proof of debt was lodged by Fishbank Development Corporation Pty Ltd (FDC) in the amount of $56,289.43, […]
ReadmoreSetting aside a Statutory Demand – a low threshold?
In Project 88 TPF Pty Ltd v Open Projects Group Pty Ltd[1] Project 88 Pty Ltd (Project 88) fell behind on payments to Open Projects Group (OPG) under a commercial building contract for the fit out of a nightclub, the Pink Flamingo Spiegelclub on the Gold Coast. OPG effectively sought to enforce a compromise agreement […]
ReadmoreReducing IDR timeframes and improving internal reporting for the financial services sector
ASIC’s new Regulatory Guide 271 comes into effect on 5 October, covering new expanded IDR requirements that seek to address ASIC’s long-standing concerns regarding deficiencies and delays in the banks’ processes including in the identification, investigation and resolution of potential systemic issues raised by complaints. In this article, Sonia Apikian and Trish Kastanias explore the […]
ReadmoreOwners Corporation Update: Obtaining an order for unanimous consent just got harder
The Owners Corporations and Other Acts Amendment Act 2021 (Vic) (the Amending Act) which is due to commence on 1 December 2021 will significantly alter the circumstances in which a member of an owners corporation, or an owners corporation itself, have standing to apply to VCAT for orders under sections 32 or 33 of the […]
ReadmoreCOVID-19 | Victorian Commercial Tenancy Relief 2.0 – Here we go again!
On 24 August 2021 the Victorian Government released the Commercial Tenancy Relief Scheme Regulations 2021 (2021 Regulations). Unlike its 2020 predecessor, the 2021 Regulations are complex and include a number of key differences. The brief summary below does not lend itself well to the complexity that will be faced by landlords and tenants alike over the […]
ReadmoreEasing of continuous disclosure obligations made permanent by the Federal Government
On Tuesday 10 August 2021, the Australian Parliament enacted changes to company continuous disclosure laws under Schedule 2 of the Treasury Laws Amendment (2021 Measures No 1) Act 2021 (Amending Act). Schedule 2 to the Amending Act was originally given life by: Treasurer Frydenberg’s introduction of the Corporations (Coronavirus Economic Response) Determination (No. 2) 2020, […]
ReadmoreThe High Court finds privilege against self-incrimination is thinner than most imagined – DCT v Shi [2021] HCA 22 (4 August 2021)
DCT v Shi [2021] HCA 22 (4 August 2021) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2021/22.html Majority: Kiefel CJ, Gageler, Gordon & Gleeson JJ Minority: Edelman J The High Court has found that the privilege against self-incrimination is thinner than most imagined, ordering disclosure of information claimed to be privileged. A witness can object to giving evidence on the ground […]
ReadmoreGadens Connect | 2021 Edition Three
For the third edition for 2021 of Gadens Connect, our team provides an overview of key performance indicators including the impact of COVID-19 holds across the recoveries portfolio, an update on permanent changes to the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) and an insight into setting aside default judgment by […]
ReadmoreFull Court gives Epic Games the green light to continue CCA claim against Apple in Australia
In Epic Games, Inc v Apple Inc,[1] the Full Court of the Federal Court of Australia considered whether an exclusive jurisdiction clause in an agreement between Epic Games and Apple required a competition law claim brought by Epic Games against Apple to be stayed to allow the dispute to play out in the United States. […]
ReadmoreImportance of properly formulating offers made in proceedings involving counterclaims
In Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd[1], the Queensland Court of Appeal considered the costs implications of an ‘all up’ offer made under the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) and whether it could determine the ‘net result’ of two orders (each order made in […]
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