Insolvency & Corporate Reconstruction
FocusPapers in the area of Insolvency & Corporate Reconstruction.
Contracts and Literal Meaning - Be aware of the scope of your contractual obligations and rights
12 January 2012
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
The High Court has recently reaffirmed that parties are bound by the literal meaning of words in a contract. Even if the effect of the literal meaning is unfair or lacks business sense, the parties will be bound unless it is patently absurd or ambiguous: see Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45.
Can a Registered Proprietor Caveat to Protect Against a Mortgagee's Wrongful Exercise of the Power of Sale?
9 December 2011
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
The Supreme Court of South Australia held in Stone v Leonardis [2011] SASC 153 that a mortgagor may caveat to protect its interest as registered proprietor when a mortgagee wrongfully exercises its power of sale.
Loans with No Repayment Terms - Can Equal "Gift"?
5 December 2011
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
It is common for loans particularly between family and friends to contain no term as to repayment. This may lead people to believe that the money only becomes payable when other the party demands its return. That is incorrect. A loan of money which contains no agreed repayment term becomes due and payable the instant the money is advanced. Therefore any cause of action arises then.
Failure to Keep Adequate book and Records Renders Directors Liable for Compensation? - Bad Record Keeping Equals Big Claims Against Directors?
22 September 2011
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
It is very common for insolvent companies, in particular, to have deficient books and records. As a result of a recent Supreme Court of NSW case there is potential for companies to pursue directors for equitable compensation for the failure to keep proper books and records in accordance with the Corporations Act 2001. The floodgates may open!
Can a Creditor Claim Damages Direct against a Director?
24 August 2011
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Bulldog Bites the Dust
Is your business prepared for the coming PPS Regime?
27 July 2011
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
In October 2011, a new personal properties regime is proposed to commence in Australia -the Personal Property Securities Act (2009) and related legislation (PPS Regime).
What are my Obligations as Responsible Entity of an Insolvent Scheme?
1 December 2010
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
The collapse of several high profile managed investment schemes including Trio Capital and Rubicon Asset Management, have resulted in a series of Court rulings on the liquidation of schemes. Whilst these cases provide useful guidance on the mechanism of winding up schemes, they also highlight the onerous responsibilities imposed on responsible entities (REs) of an insolvent scheme.
ASIC issues insolvent trading refresher
21 September 2010
Author: Daniel Goldberg, Special Counsel
Practice areas: Corporate, Mergers & Acquisitions and Insolvency & Corporate Reconstruction
The Australian Securities and Investments Commission (ASIC) has issued a new regulatory guide intended to help directors understand and comply with their duty to prevent insolvent trading.
Creditors Meetings - Make Your Vote Count
8 September 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
The Court held improperly executed proxies are invalid. Creditors meetings cannot be adjourned to allow a creditor to prepare a properly executed proxy.
Third Party Claimants - Greater Access to Insurance Policies
27 August 2010
Author: Nicole Tyson, Partner
Practice area: Insolvency & Corporate Reconstruction
The Court held third party claimants can rely on s54(1) Insurance Contracts Act 1984 (Cth) when suing insurers directly under s6(4) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Committees of Inspection - Caution!
4 August 2010
Author: Philip Stern
Practice area: Insolvency & Corporate Reconstruction
To validly establish a committee of inspection, a resolution of creditors and contributories are required according to the Supreme Court of South Australia. If the determinations differ, then the liquidator will need a Court order on the issue. This will impact on the practice of liquidators, as such a resolution is often only put to a meeting of creditors.
Retention of Title Clauses - Court of Appeal
4 August 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Retention of title clauses failed to protect the supplier in this case. Important lesson on interpretation of multiple retention of title clauses, and how parties ought to conduct themselves to protect their interests.
Caveats - Preventing a Mortgagee's Power of Sale
7 July 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
The Court declined to extend caveats lodged by a registered proprietor which would prevent the mortgagee exercising its power of sale.
Privilege against self-incrimination
22 June 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Privilege against self-incrimination - when and how it can be claim, and how to avoid inadvertent waiver of the privilege.
Conversion and Detinue - Caution!
10 June 2010
Author: Philip Stern, Partner
Practice area: Insolvency & Corporate Reconstruction
Bunnings was found liable in conversion and detinue for its use of Chep pallets. Damages of over $10 million plus interest. Continued use of goods in the face of demands without attempts to ascertain ownership is risky, and may result in liability for damages at market hire rates.