Mislead or misread? How a simple miscalculation resulted in the setting aside of an otherwise valid Bankruptcy Notice
The Federal Court of Australia recently considered whether a Bankruptcy Notice with an arithmetical error in relation to the exchange rate and currency conversion contained a formal defect or irregularity that could be cured by section 306 of the Bankruptcy Act 1966 (Cth) (Act). Background This case concerns a judgment awarded by the High Court […]
ReadmoreExpansive Examination – High Court significantly expands public examination rights
In Walton & Anor v ACN 004 410 833 Limited (formerly Arrium Limited) (in liquidation),[1] the High Court considered whether a summons issued to examine a former director of Arrium Limited (Arrium) was an abuse of process in respect of section 596A of the Corporations Act 2001 (Cth) (Act). In doing so, it recharted a […]
ReadmoreCourt identifies a ‘very poorly drafted deed’ and sets aside Statutory Demand – reminder to have a properly drafted deed to avoid potential disputes
In the matter of Jana Pty Ltd[1] is a decision of the Supreme Court of New South Wales setting aside a Statutory Demand issued for an alleged guaranteed debt arising out of a Deed. The Deed contained conflicting and ambiguous clauses which led to a dispute about the debt specified in the Statutory Demand. This […]
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, […]
ReadmoreGadens Connect | 2021 Edition Four
In this edition of Gadens Connect, our team provides an overview of key performance indicators as we move into Christmas; an update on the new Financial Difficulty Guideline; an insight into legislative changes in relation to witnessing of affidavits (South Australia); a summary of FAQs regarding mortgagee in possession liability; and an overview of smoke […]
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 […]
ReadmoreAppointed too late – company fails to avoid liquidation
Section 440A(2) of the Corporations Act 2001 (Cth) (the Act) requires the Court to adjourn a winding up application if it is satisfied that it would be in the best interest of creditors for the company to continue under administration rather than be wound up. In the matter of Integrated Green Energy Solutions Ltd (administrators […]
Readmore“Let there be a vote” – Victorian Supreme Court grants adjournment under recent Small Business Restructuring Reforms
In Re Dessco Pty Ltd,[1] the Victorian Supreme Court adjourned a winding up application for 50 days to allow time for creditors to vote on a restructuring plan. Whilst the adjournment was opposed by the Plaintiff, the Judicial Registrar of the Court accepted the assessment formed by the Small Business Restructuring Practitioner that the company […]
ReadmoreATO on the watch after liquidators claw back funds despite a Deed of Company Arrangement
In the matter of Western Port Holdings Pty Ltd (receivers and managers appointed)(in liq) [2021] NSWSC 232, Deed Administrators who were subsequently appointed Liquidators of Western Port Holdings Pty Ltd (the Company) clawed back over $2 million worth of payments made to the Australian Taxation Office (ATO) whilst the Company was subject to a Deed […]
ReadmoreUlterior motives and personal interests lead to setting aside of Public Examination Order
In ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton & anor,[1] the New South Wales Court of Appeal considered the purpose for which public examination summons and production of documents can be ordered. Drawing on authorities that the predominant purpose of a public examination should be for the benefit […]
ReadmoreQueensland Court of Appeal rejects ‘IOU’ as payment for debt
In Bayly v Westpac Banking Corporation[1], the Queensland Court of Appeal dismissed an appeal against a summary judgment granted in favour of Westpac Banking Corporation (Westpac). Whilst there were broadly, two grounds of appeal, the appellant was self-represented and raised numerous issues and alleged errors of law and fact made by the primary Judge. The […]
ReadmoreTravelling / moving overseas while bankrupt
In Moltoni v Macks as Trustee of the Bankrupt Estate of Moltoni (no 2) [1] the Federal Court of Australia considered a bankrupt’s application for review of the Bankruptcy Trustee’s decision not to allow him to leave Australia and live in the UK. Although there were doubts about the bankrupt’s assistance to date with the Trustee’s investigations, […]
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