Amerind – insolvent corporate trustees and the Corporations Act 2001 priority regime – still a grey area
The Victorian Court of Appeal in Amerind[1] considered whether the right of indemnity from trust assets held by an insolvent trustee company is ‘property of the company’. If so, the Court considered whether the statutory scheme of priority contained in the Corporations Act 2001 (Cth) (Corporations Act) applies to the distribution of the relevant property. […]
ReadmoreVoluntary Administrators – entitlement to an equitable or statutory lien over funds held on trust
A recent case in the Supreme Court of Victoria of In the matter of Specialist Australian Security Group Pty Ltd (In Liquidation) (ACN 094 807 173)[1] considered voluntary administrators’ claim to a statutory and equitable lien in respect of remuneration and expenses incurred by them. The facts Valdii Investments Pty Ltd (Valdii) and Abcit […]
ReadmoreFreezing and ancillary orders – key factors the Court considers
Following our July 2018 refresher article ‘Freezing orders – a refresher’, the recent decision of Parbery & Ors v QNI Metals Pty Ltd & Ors [2018] QSC 107 is a helpful reminder of the factors the Court will take into account and the threshold an applicant must meet when deciding whether to grant freezing and […]
ReadmoreWhen a trading trust goes bust: the aftermath of the Killarnee decision
Many modern businesses are carried on through a “trading trust”, with a private company serving as trustee. However, while this type of arrangement is not uncommon, there is still a great deal of uncertainty about correct protocol when a corporate trustee becomes insolvent. Questions arise such as: What happens with the corporate trustee is wound […]
ReadmoreLandlords beware – Ipso facto reforms further restrict your rights on insolvency default
On 1 July 2018, the new Insolvency Law reforms in relation to the restrictions on “Ipso Facto” clauses came into force (see new s.415D, s.434J and s.451E of the Corporations Act). In short, the Ipso Facto reforms create an automatic stay on a party’s right to enforce a provision to terminate or amend a Contract […]
ReadmoreThe first reported foreclosure in Queensland for 35 years – an innovative litigation solution
In June 2018, we assisted one of our government clients to achieve an innovative solution that delivered benefit for both the agency and its defaulting borrower whose security property was in significant negative equity – the first reported foreclosure in Queensland since 1981. The result provided the agency with protection, control and costs savings, and […]
ReadmoreLet the Court decide – administrator and equitable liens
In White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) v Robertson,[1] the Full Court of the Federal Court of Australia considered whether administrators were entitled to an equitable lien over property owned by a company or a third party to recover fees and costs incurred in an administration. This arose in circumstances where […]
ReadmoreFreezing orders – a refresher
What is a freezing order? Previously known as a Mareva order, a freezing order is an interlocutory order restraining a person or corporation from removing any assets located in or outside Australia or from disposing of, dealing with or diminishing the value of, those assets. What is the purpose of a freezing order? The purpose […]
ReadmoreVoluntary Administrators – entitlement to an equitable or statutory lien over funds held on trust
In the recent decision of Trenfield, in the matter of Crusaders Managers Pty Ltd (Administrators Appointed)[1], the Federal Court of Australia considered whether the voluntary administrators of a company (whose sole purpose was to act as the trustee of a trust), should be appointed as receivers and managers of a trust in order to deal […]
ReadmorePossession remains only 9/10ths of the law post PPSA
Since the commencement of the Personal Property Securities Act in January 2012 (PPS Act) there appears to have developed a single minded attitude amongst Insolvency Practitioners that if :- they have an asset in their possession; and it is not subject to a registered security interest under the PPSA; then they are entitled to possession […]
ReadmoreIpso facto reforms – Can I enforce my contractual rights?
Ipso facto clauses are contractual provisions that allow a party to terminate or modify a contract on the occurrence of a specified event. The Commonwealth Government has introduced reforms which will limit the rights of a party to enforce ipso facto clauses in certain insolvency scenarios. The reforms come into effect on 1 July 2018. […]
ReadmoreIpso facto reforms at a glance
The Commonwealth Government has introduced reforms to the insolvency regime which will change the way in which ipso facto clauses in contracts operate on the occurrence of an insolvency event. These reforms come into effect on 1 July 2018. What are ipso facto clauses? Ipso facto clauses are provisions in contracts that allow a […]
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