An archive of the most recent 100 bulletins, with excerpts, is set out below.
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- To see a full list without excerpts, see here.
The Walrus has spoken 28 July 2016 - So this whole PPSA thing – do you register by ACN or ABN or what? And what if you get it wrong? The Walrus has the answer… The Accolade Wines decision In a Supreme Court decision handed down earlier this week, a financier who had mistakenly registered a whole bunch of PMSIs by ABN…Read more The Walrus has spoken
Court of Appeal to rule on Brereton remuneration decisions 6 June 2016 - Last Friday, Justice Brereton finally published his reasons in Sakr Nominees Pty Ltd [2016] NSWSC 709, the latest in a series of controversial decisions on insolvency practitioner remuneration.
Trust me… 24 February 2016 - Yesterday, the Supreme Court of New South Wales delivered a decision of relevance to the practice of every liquidator in Australia. Justice Brereton, whose recent decisions on insolvency practitioner remuneration have drawn a fair bit of attention, delivered a complex decision in which he reached conclusions of significance to any liquidator winding up a corporate…Read more Trust me…
Government funds liquidators to pursue employee entitlements 10 July 2015 - The Department of Employment has recently announced the “Fair Entitlements Guarantee Recovery Programme”, a Government-funded programme “designed to strengthen recovery activity of amounts advanced under the Fair Entitlement Guarantee (FEG) scheme”.
ATO circumvents section 486 protection 8 July 2015 - Section 486 of the Corporations Act says that a court-appointed liquidator must not allow creditors or shareholders to inspect company books and records without a court order. A recent Federal Court decision has held that the prohibition also applies in voluntary windings up – but the ATO is able to circumvent it by issuing a statutory notice to produce…Read more ATO circumvents section 486 protection
The Master’s waste of time – remuneration revisited 24 March 2015 - Many readers will be aware of the controversial Supreme Court decision in AAA Financial (No. 2), which gained the profession’s attention as a result of the court’s adverse comments about time-based charging by insolvency practitioners. AAA was followed soon after by two more remuneration decisions from the same court – On Q and Hellion. In…Read more The Master’s waste of time – remuneration revisited
Joe & Joe – IPs’ legal costs under scrutiny 23 October 2014 - Yesterday the Supreme Court published its long-awaited decision in the Joe & Joe Developments litigation. The litigation has been the subject of much gossip in the industry as it concerned allegations of rampant overcharging by insolvency practitioners and their lawyers. Commentators and industry observers have been poised, salivating, waiting for the scandal to break. In the…Read more Joe & Joe – IPs’ legal costs under scrutiny
Pay cut on the horizon for liquidators 20 October 2014 - On Friday, the NSW Supreme Court handed down two further decisions in its drive to hammer home to liquidators the importance of proportionality when claiming remuneration. In both cases, his Honour Brereton J built on his earlier decision in AAA Financial Intelligence Ltd (in liquidation) (No 2) [2014] NSWSC 1270 (see update here), emphasising that…Read more Pay cut on the horizon for liquidators
Federal Court: No duty of loyalty 8 October 2014 - A recent Federal Court decision has found that solicitors do not owe any overarching duty of loyalty to former clients.
Federal Court: Liquidators are not “officers” 26 September 2014 - A surprising Federal Court decision has determined that a liquidator “is not an officer of the corporation for the purposes of the [Corporations] Act”.
Court of Appeal thwarts attempt to stifle liquidator 25 September 2014 - A liquidator does not always need to provide security for costs when bringing actions in the name of an insolvent company.
Out of control – VSC punts unregistered receiver 22 September 2014 - Recently, the Victorian Supreme Court handed down a judgment that makes it clear that if you are really being appointed as a receiver, you cannot escape the more stringent regulatory requirements by terming yourself a controller.
Bailed out – PPSA loopholes closed 18 September 2014 - A recent decision has shed light on when bailments and consignments will be deemed to be “security interests” (and when they will not). This closes potential loopholes in the PPSA.
Remuneration ravaged, expenses disallowed – NSW Supreme Court puts the system on trial 18 September 2014 - In a decision handed down yesterday, the Supreme Court got well and truly stuck in to liquidators and their lawyers.
First bite of the pie 16 September 2014 - When you have two caveators both claiming the same money, who gets paid first?
Removing security interests the cheap way 9 September 2014 - With the introduction of the Personal Properties Securities Register, there is now a streamlined process where a party is able to register a security interest over personal property.
Liquidator remuneration rights clarified 30 August 2014 - A recent decision of the Supreme Court of NSW has concluded that the cases “establish clearly enough” that, where a company conducted all its activities as trustee of a trust, the liquidator is entitled to be paid from trust property for general winding up work, not just trust-specific work: In the matter of North Food Catering Pty Limited [2014] NSWSC 77.
AFSA updates complaint handling process 26 August 2014 - AFSA has revised its process for handling complaints about the conduct of bankruptcy trustees.
Supreme Court puts Hall v Poolman back in its box 15 August 2014 - In a well known 2009 decision, Hall v Poolman [2009] NSWCA 64, a liquidator was criticised for pursuing a claim in circumstances where the entire sum recovered would be paid to the liquidator and his funder, leaving creditors without a return. This criticism did not go unnoticed
A shot across the bows 11 August 2014 - Do liquidators have a duty of care to the guarantors of secured debt? A recent decision of the Victorian Supreme Court has built on a 2007 South Australian decision suggesting that they do.
Fraud, corruption, and coldies at the Lord Stanley 7 August 2014 - The last week has seen a flurry of interesting court decisions from State and Federal courts. Six decisions are of particular note, and each is worthy of a separate, detailed update.
Shooting of liquidators: un-Australian 16 June 2014 - Being a liquidator can be a risky business. Liquidators (and their legal advisers) have a long tradition of putting their bodies on the line for the sake of their work, selflessly risking personal harm through exposure to such dangers as high cholesterol, liver failure and other prandiogenous ailments. Injury by gunshot is, thankfully, less commonly…Read more Shooting of liquidators: un-Australian
Taxpayer guillotined – ATO still not happy 17 December 2013 - Yesterday the Federal Court made unprecedented use of an obscure provision of the Corporations Act to give a distressed company a final chance to sort itself out. Instead of winding the company up immediately, the court made a conditional winding up order, which now remains suspended over the company like a guillotine, “encouraging” it to…Read more Taxpayer guillotined – ATO still not happy
Deputy Commissioner of Taxation v Impress Enterprises Pty Limited 11 November 2013 - The Federal Court has recently continued the courts’ emerging practice of appointing incumbent administrators as liquidators when there is no reason to question their professionalism or independence, and where the continuation of their tenure may result in costs savings for creditors.
It’s easier to ask for forgiveness than permission 15 October 2013 - I’ve always wanted a motorbike, but my wife won’t let me have one. I once asked a Harley-owning friend of mine how, during his spectacular lycra-clad roller-blading pony-tailed Harley-riding midlife crisis, he managed to get his wife to agree to his Harley. His response was to inform me that he just went out and bought…Read more It’s easier to ask for forgiveness than permission
A liquidator’s conscience 24 September 2013 - It is not every day that a decision about how to distribute funds in a winding up turns on the conscience of the liquidator. However, the liquidators’ (blissfully untroubled) conscience was the determining factor in a recent decision of the Supreme Court of New South Wales.
New traps for tax agents 2 April 2013 - This update concerns a significant new risk for tax agents, which is fortunately able to be minimised by implementing a single, simple measure.
The costs of unnecessary court applications 3 October 2012 - The Federal Court has recently issued a stark warning about the need for insolvency practitioners to do their homework, thoroughly, before approaching the court for directions – and to use the court only to clarify points that remain unclear after proper investigation and research.
The ATO trumps a mortgagee – or does it..? 7 September 2012 - Many of you will be familiar with the decision in Tang & Anor v. Bassili & Ors [2011] FMCA 544, in which the Federal Magistrate’s Court said that the ATO could not use a garnishee notice to hijack the proceeds of sale of a mortgaged property. Last Friday, that decision was overturned on appeal, and…Read more The ATO trumps a mortgagee – or does it..?
Deputy Commissioner of Taxation v Zammitt 4 September 2012 - On Friday, the District Court of New South Wales handed down a decision with potential relevance to any director penalty notice (DPN) claims involving a DPN issued before 1 July 2010. In the course of handing down the decision, the court also criticised the ATO for engaging in sharp practice when it was supposed to…Read more Deputy Commissioner of Taxation v Zammitt
How to avoid a catastrophe for $7.40 – practical advice about one ramification of the PPSA 29 August 2012 - A stitch in time… A $7.40 outlay, and ten minutes filling in a online form, can save your clients ten of thousands of dollars. See below to learn why.
In the matter of Rivercorp Pty Limited 12 June 2012 - A recent Supreme Court decision has made it clear that the ATO cannot hide behind its own internal policies as an excuse not to pay a liquidator’s costs of court action to recover unfair preferences.
Larkden v Lloyd: Costs orders made after the appointment of an administrator are not provable debts 3 April 2012 - Another superior court decision has made clear that costs orders made after the appointment of an administrator are not provable debts.
Kassem and Secatore v Commissioner of Taxation [2012] FCA 152 2 March 2012 - In Kassem and Secatore v Commissioner of Taxation [2012] FCA 152, the Federal Court dealt, fairly brutally, with three arguments often raised by the ATO in the defence of unfair preference claims
Gorst Rural Supplies Pty Limited v Glenroy (Lake Bolac) Pty Limited [2012] VSC 60 29 February 2012 - The Victorian Supreme Court has recently determined that the appointment of an administrator the day before a winding up hearing amounted to an abuse of the voluntary administration process
Workers Compensation Nominal Insurer v Perfume Empire Pty Limited 6 May 2011 - A recent decision of the Supreme Court of New South Wales has potentially altered the “default position” that, when a company under administration is wound up by the court, the court will appoint the liquidator nominated by the petitioning creditor, rather than the incumbent administrator.
Arena Management v Campbell Street Theatre 26 October 2010 - In a decision of the Supreme Court of New South Wales handed down this morning, a sharp reminder was given to insolvency practitioners – if you spend creditors’ money on futile court proceedings, you might find that it is not creditors’ money you’ve been spending.
Brown v Bluestone Property Services Pty. Limited 5 August 2010 - Yesterday, the Supreme Court of New South Wales handed down a decision which highlights the importance of taking care in the preparation of winding-up documents. The Plaintiff’s winding-up application failed solely because their solicitor had not sufficiently explained how their Statutory Demand had been served
Sutton v BE Australia WD Pty. Ltd (Administrator appointed) 16 July 2010 - Yesterday, the Supreme Court of New South Wales handed down a decision of relevance to insolvency practitioners confronted with an unliquidated, unlitigated creditor claim.
New Standard for CA / CPA Members 31 March 2010 - As you may be aware, a new Standard is about to become binding on all members of the Institute of Chartered Accountants of Australia and all members of CPA Australia. In this regard Professional Standard APES 330 – Insolvency Services, issued by the Accounting Professional & Ethical Standards Board (APESB) in September 2009, has recently been adopted by…Read more New Standard for CA / CPA Members
Two recent decisions on Statutory Demands 20 February 2010 - In March last year, Faji (Australia) Constructions Pty Limited v AC Professional Accounting Pty Ltd [2009] NSWSC 180, Barrett J said that solicitors must not swear Affidavits in support of Statutory Demands on the basis of information and belief. If they do, the statutory demand is liable to be set aside with costs without the…Read more Two recent decisions on Statutory Demands
Insolvency Update 