Federal Court’s refusal to grant leave to amend pleadings
On 11 February 2022 in Canavan v ICRA Rolleston Pty Ltd (Receivers and Managers Appointed)(in liquidation) [2022] FCA 117 the Federal Court of Australia refused to permit the Plaintiff to amend his points of claim less than two weeks before trial. In considering the legal principles and matters relevant to the exercise of the court’s […]
ReadmoreHow to avoid contaminating an insolvency appointment: when a disclaimer of land may be set aside
In March 2019, Liquidators were appointed to The Australian Sawmilling Company Pty Ltd (TASCO) by way of a creditors’ voluntary winding up. TASCO owned a large lot of contaminated land – there were stockpiles of construction and demolition waste resulting from a former licensee conducting a materials recycling business. Close to a year before this, […]
ReadmoreSetting off on the wrong foot: creditors are now unable to rely on statutory set-off to defend an unfair preference claim by a liquidator
In a special question reserved for consideration, the Full Federal Court considered whether statutory set-off under s 553C(1) of the Corporations Act 2001 (Cth) (the Act) was available to defend against a liquidator’s claim to recover an unfair preference under s 588FA of the Act. The unanimous and somewhat emphatic answer to this question delivered […]
ReadmoreLiquidator granted approval to enter into funding agreements and confidentiality orders from the Federal Court
Thorn (liquidator), in the matter of South Townsville Developments Pty Ltd (in liq)[1] (Company) involved an ex parte application by a liquidator seeking approval under section 477(2B) of the Corporations Act 2001 (Cth) (Corporations Act) to enter into agreements to fund existing litigation and a request for the suppression and non-publication of certain details in […]
ReadmoreNSW Supreme Court provides guidance on the procedural requirements for disputes determined by AFCA
The case of Australian Capital Financial Management Pty Limited v Australian Financial Complaints Authority Limited (2021) NSWFC 1577 concerned an application made by Australian Capital Financial Management Pty Ltd seeking to have the Court set aside a previous determination made by AFCA. Background In 2014, Mr Bai, Ms Yang and Mr Lee established Australian Sheepskin […]
ReadmoreEquitable Assignment: The question is how the parties viewed the transaction not how the transaction was recorded
Business Finance Pty Ltd (receiver and manager appointed) v Partner Invest Pty Ltd (in liquidation) [2022] NSWSC 1 was a dispute between the external administrators of the plaintiff and defendant companies. Marcus Ayres was the appointed receiver and manager of Business Finance Pty Ltd (Business Finance) and Andrew Sallway was the liquidator of Partner Invest […]
ReadmoreLiquidator loses game of Gulf: why the Supreme Court of Queensland refused to terminate the winding up of Gulf Aboriginal Development Company
In a recent case involving key stakeholders in the ‘Century Mine’ (Mine) – located in the lower Gulf of Carpentaria region in Northwest Queensland – the Supreme Court of Queensland considered an application brought by a liquidator and creditor for the termination of a winding up of pursuant to section 482(1) of the Corporations Act […]
ReadmoreIs it Just? Federal Court of Australia considers whether to reinstate a deregistered company and whether the deregistration itself prevented the proposed plaintiff from filing within the limitations period
In deciding whether to reinstate a deregistered company (and suspend a limitation period to allow the company to commence proceedings), the primary question for the court is whether it is just to do so. In the recent decision of the Federal Court in Price, in the matter of Advanced Polymer Recycling Pty Ltd v Australian […]
ReadmoreBalancing the right of bankrupts and creditors: characterising after-acquired property of bankrupts
Mr Badcock (the Respondent) was an undischarged bankrupt, and Mr Ambrose (the Applicant) was the trustee of his bankruptcy. The key issue for determination was the definition of property under the Bankruptcy Act, and whether the moving of monies into an interesting-bearing account by the Respondent was sufficient to change the character of income to […]
ReadmoreFederal Court of Australia sets out the principles relevant for an application by a liquidator for approval to enter into a costs agreement and a funding agreement under s 477(2B) of the Corporations Act (Cth)
Litigation funding can play an important role in allowing liquidators to recover debts on behalf of liquidated companies, where there may be a real prospect of success in recovery proceedings but where obstacles such as funding or security for costs may present themselves. Pursuant to section 477(2B) of the Corporations Act 2001 (Cth) (the Act), […]
ReadmoreAn administrator’s right to remuneration out of trust property
In Australian Securities and Investments Commission v Marco (no 9) [2021] FCA 1306 the Administrators brought an interlocutory application seeking remuneration orders pursuant to section 60-10(1)(c) of the Insolvency Practice Schedule (IPSC) for the administration of the second defendant. The application was opposed by the Liquidators of the second defendant. Justice McKerracher ultimately held that […]
Readmore‘Sequencing problem’ – the Court makes orders varying the operation of the Corporations Act to allow a voluntary administrator to transfer shares without owner consent
In the Supreme Court of New South Wales case of In the matter of Habibi Waverton (in liquidation) (administrator appointed),[1] the Court considered whether or not to permit a voluntary administrator to transfer shares in order to implement a Deed of Company Arrangement (DOCA) pursuant to section 444GA of the Corporations Act 2001 (Cth) (the Act). […]
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