Insolvency & Corporate Reconstruction
FocusPapers in the area of Insolvency & Corporate Reconstruction.
Update - Assessment of damages for conversion and rent in Rapid Metal Developments
3 March 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
As we reported in our recent FocusPaper, the Supreme Court of NSW held in Rapid Metal Developments (Aust) Pty Ltd v Rildean Pty Ltd [2009] NSWSC 571 (26 June 2009) that agents for a mortgagee in possession ("controllers") were personally liable to pay hire charges accruing under an agreement entered into by the failed company prior to the appointment. They were also liable for conversion. The controllers of Rildean had taken possession of RMD's scaffolding, which had been comingled with scaffolding from other sources.
Rent and Damages for Conversion - Controllers Liable - Warning!
2 February 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Controllers personally liable for rent and conversion - warning to insolvency practitioners and their appointors!!
Caveatable Interests
21 December 2009
Author: Phil Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Landowner consents to a caveat - a caveatable interest in land? What to do and not to do!
Retention of Title Clauses and Caveatable Interests
23 October 2009
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Can a retention of title clause give rise to a caveatable interest in land?
Variation of Charges - Octaviar Overturned on Appeal
30 September 2009
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
What is a variation of a charge, and when is ASIC notification required? Octaviar judgment overturned.
Retention of Title Clauses - Where Goods On-Sold to Third Party - New Case!!
20 August 2009
Author: Phil Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
This case deals with retention of title clauses where the goods were on-sold to a third party. The third party was found to have title to the goods as the retention of title clause authorised the sale and passing of title, in return for a right to the proceeds of sale.
Tenancy Issues Arising in Insolvency
28 July 2009
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
What should lessors do if faced with an insolvent tenant? Most leases allow the lessor to terminate on the tenant's insolvency, and often before then (for example, when a winding up application is filed). Before deciding whether to terminate however, lessors should consider legal matters including the lessor's contractual position, obligations and restrictions imposed by statute and commercial considerations.
Administrators' Remuneration - Recent Cases
17 June 2009
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
Two recent cases have considered the issue of administrators' remuneration. Coad v Wellness Pursuit Pty Ltd held that an administrator's lien for his remuneration had priority over a registered charge as it would otherwise be unconscientious for the creditor to obtain the fruits of the administrator's labour without remunerating and reimbursing him first. Vince v Hurley Transport provides guidance on how a Court considers the various s449E(4) factors in fixing an administrator's remuneration, and how it applies the "lodestar" amount approach.
Insolvency Alert: What To Do If Your Distributor or Manufacturer Goes Belly Up
10 June 2009
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
What should companies do if their distributor or manufacturer goes belly up? With insolvency looming for many businesses, this article gives some practical guidance on dealing with an insolvent business partner.
How much is your foyer worth? Landlord's damages for tenant's breach of repair covenant
6 April 2009
Author: Phil Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8, the High Court resolved a 12 year dispute by ordering the tenant to pay the landlord $1,380,000 in damages for altering the building's feature foyer without first obtaining the landlord's consent. This case deals with how damages are calculated for breach of a repair covenant.
Creditors' Trusts - The Death of Deeds of Company Agreement?
6 April 2009
Author: Phil Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
This recent decision of the Supreme Court of NSW sends an important message to insolvency practitioners about the use of deeds of company arrangements which set up creditors' trusts, and then promptly terminate. Practitioners are reminded that such trusts are not regulated by Part 5.3A of the Corporations Act and that creditors ought to be advised of the implications of departing from the court administered scheme of creditor protection that is Part 5.3A.
Update - Liquidators will be personally liable for GST
10 March 2009
Author: Phil Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
GST legislation will be amended to make it clear that representatives of incapacitated entities are liable for GST on post-appointment transactions. The amendments will have retrospective effect frmo 1 July 2000.
Are liquidators personally liable for GST?
18 December 2008
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Deputy Commissioner of Taxation v PM Developments Pty Ltd [2008] FCA 1886 is a recent test case in which a liquidator challenged the ATO's position that liquidators are personally liable for GST from taxable supplies made after the wind up order. Judgment was handed down on 12 December 2008.
Unreasonable director-related transactions & liabilities in Australian liquidations
17 December 2008
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
The recent case of Woodgate v Fawcett [2008] NSWSC 868 considered the provisions regarding unreasonable director-related transactions. A feature of s588FDA Corporations Act is that the company need not have been insolvent at the time or as a result of the unreasonable transaction. This broadens the range of potential transactions which may be attacked by a liquidator.
Redeemable preference shareholders in an administration or winding up
4 September 2008
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
Addisons has recently acted for the administros of a company in administration in whcih the NSW Supreme Court has given directions as to whether redeemable preference shareholders of the company hold their rights as shareholders or creditors.