Clarification on the application of Killarnee and Re Amerind to companies in administration

Clarification on the application of Killarnee and Re Amerind to companies in administration

Since the publication of decisions by the Full Federal Court in Jones (in his capacity as liquidator of Killarnee Civil & Concrete Contractors Pty Ltd (ACN 085 230 486 (in liq)) v Matrix Partners Pty Ltd (2018) 354 ALR 436 and by the Victorian Court of Appeal in Commonwealth v Byrnes (2018) 330 FLR 149 (Re Amerind), consequential questions have arisen about how these decisions apply to other forms of external administration.

Read More

Creditors’ Best Interests: Have they Changed?

Creditors’ Best Interests: Have they Changed?

Section 440A of the Corporations Act 2001 (Cth) (the Act) provides that a Court is to adjourn the hearing of a winding up application if the company is under administration and the Court is satisfied that it is in the interests of the company’s creditors for the company to continue under administration rather than be wound up. The authorities on this section are well established and the principles to be applied in such an application are well known. Despite this, there is a tendency for the outcome of these applications to be unpredictable.

Read More

Understanding Personal Guarantees: What you should know before signing

Understanding Personal Guarantees: What you should know before signing

It is not uncommon for us to be approached by potential clients concerned about their financial position, after signing a personal guarantee.  However, what is particularly concerning is that most of these individuals did not (and continue not to) have a proper understanding of the nature and effect of that guarantee at the time of signing it.

Read More

Penalties Revisited: When Protective Measures Become Punishing Measures

Penalties Revisited:  When Protective Measures Become Punishing Measures


The recent case of Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd [2017] VSCA 161 (Melbourne Linh) may have served to revisit (and possibly change) the Australian legal landscape regarding penalties.  In Melbourne Linh, the Court of Appeal found that a loan establishment fee of $26,625 constituted a penalty in circumstances where the fee did not represent the protection of the respondent’s legitimate commercial interests. The case is interesting because it potentially paves the way for Courts to, in future cases, adopt a broader approach when determining penalty cases.

Read More

Safe Harbour: A Guide For Accountants

Safe Harbour:  A Guide For Accountants

By now, most accountants are likely to have heard about, and perhaps have some familiarity with, the new “safe harbour” laws.  But for those accountants who still feel unsure about their knowledge of these new provisions, the following article will help you get your head around what safe harbour means for your accounting practice.   

Read More

Payment Clauses In Construction Contracts - How the Addition of a Simple Clause Could Save You Time and Money

Payment Clauses In Construction Contracts - How the Addition of a Simple Clause Could Save You Time and Money

Consider this hypothetical.  You perform construction work or provide related goods and services on a site in WA under a written construction contract.  You render a progress claim, but before the progress claim falls due for payment, the contract is terminated, whether by mutual consent or otherwise.

In this unpalatable, but entirely conceivable scenario, the situation can be potentially dire. Clearly, payment is critical for the maintenance of cash flow, liquidity and solvency.  The inability to recover progress claims in a timely and cost-effective manner can often mean the difference between the business surviving, and having to close its doors.

 

Read More

New data breach laws: Will your organisation be affected?

New data breach laws: Will your organisation be affected?

We all know that technology is continually developing. That development has resulted in vast amounts of personal information being collected and stored digitally by organisations. With that comes an increased risk of cyber threat. Yet, few organisations’ security procedures are as sophisticated as they ought to be, and there are gaps where workplace practices are out of step with the technical controls in place. It is against this background that the Privacy Amendment (Notifiable Breaches) Act 2017 (the Act) was born.

Read More

Levelling the Playing Field: The legislative response to unfair terms in small business contracts

Levelling the Playing Field: The legislative response to unfair terms in small business contracts

Commercial Law | By Paul Pascoe and Paul Mac

A recent change to the Australian Consumer Law (ACL) aims to alter the landscape of contracts entered into between small and large businesses for the supply of goods or services.
Historically, there has been a trend for large businesses to exert a certain level of clout to effectively push smaller businesses, with less bargaining power, to sign contracts on terms highly favourable to the more powerful parties. However, the scope of protection now afforded under section 23 of the ACL has been expanded to include parties to small business contracts, as well as individual consumers.

Read More

A Safe Harbour for Directors? Shielding against personal liability for insolvent trading

A Safe Harbour for Directors? Shielding against personal liability for insolvent trading

The Australian Government’s Productivity Commission, tasked with independent research and advisory on various economic, social and environmental issues, has recommended amendments to the Corporations Act 2001 (Cth) (Act) which will introduce a ‘safe harbour’ for company directors facing personal liability for insolvent trading.

Read More

Badran v Public Transport Authority of Western Australia

Badran v Public Transport Authority of Western Australia

In 2009, Mr Badran was travelling on a return concession train ticket from Perth to Rockingham when he was approached by two Public Transport Authority Revenue security officers and asked to provide proof of his concession entitlement. Mr Badran produced an expired concession card containing his full name and address, but not his date of birth. One of the officers asked Mr Badran to supply his date of birth so that an infringement notice could be issued. Mr Badran refused to do so, asking instead that the notice be mailed to him.

Read More

Most Unfair - the Expansion of the Uncommercial Transaction

Most Unfair - the Expansion of the Uncommercial Transaction

The liquidator of Ashala Model Agency Pty Ltd (Company) commenced recovery proceedings against Featherstone, the Company’s shadow director. Relevantly, Featherstone had paid himself using the Company account to clear a loan that he provided to the Company. Featherstone ultimately used that money to purchase a residential property for his de facto partner, who was also the main shareholder of Ashala. The monies paid to Featherstone rendered the Company insolvent.

Read More

Extraordinary Drivers Licence Applications - A Practical Guide

Extraordinary Drivers Licence Applications - A Practical Guide

If you lose your drivers licence as a consequence of a driving offence, you have a right to apply for a special licence - an extraordinary driver’s licence (EDL) in certain circumstances.

This article is designed those considering applying for an EDL to understand the procedures involved in making such an application. However, it is always a good idea to seek legal advice because what will be required to satisfy a magistrate will be different in each individual case. Specifically, an applicant will need advice as to what evidence will be required to determine whether it is appropriate for an EDL application to be granted.

Read More

Drafting Your Will - Why it is Better to Have a Lawyer

Drafting Your Will - Why it is Better to Have a Lawyer

Having a will which deals with the distribution of your estate is the simplest and most effective way to avoid costly legal disputes, yet many people do not have one of their own. Perhaps this is due to the fact that thinking about wills is not a pleasant thing to do, or perhaps it is a case of simple laziness. Regardless of the reason, it is important to understand why having a valid will in place is so important.

Read More

Restraining Orders - a Guide for Beginners

Restraining Orders - a Guide for Beginners

Misconduct Restraining Orders (MROs) and Violence Restraining Orders (VROs) are used frequently in circumstances where one has a problem with another’s behaviour. The following guide provides some general information for those who may have an interest in either bringing a restraining order against another, or defending a restraining order brought by a third party against you.

Read More