Public examinations of directors or other persons: When should an order be made that the examination be held in private rather?

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Public examinations of directors or other persons: When should an order be made that the examination be held in private rather?

Public examinations provide a means by which a liquidator, administrator or other eligible applicant can examine officers of a corporation and any other person who may be able to provide information about the corporation's 'examinable affairs’. Section 597(4) of the Corporations Act 2001 (“Act”) provides that an examination should be held in public, except where or to the extent that the court considers it desirable, because of 'special circumstances', that it be held in private.

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Australian Government Economic Response to the Coronavirus

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Australian Government Economic Response to the Coronavirus

On 22 March 2020, the Australian Government announced urgent interim changes to the insolvency rules as set out in the Corporations Act 2001 (Cth), the Corporations Regulations 2011 (Cth) and Bankruptcy Act 1966 (Cth) to assist with the financial impact of the Coronavirus on Australian businesses. While at present there is no guidance as to when these urgent measures will commence, they will no doubt come into effect imminently.

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Alterations/Renovations to Common Property in a Strata Scheme

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Alterations/Renovations to Common Property in a Strata Scheme

In Western Australia, common property is owned by all the proprietors in undivided portions determined by the unit entitlement allocated to each lot. An underlying principle of the Act is that changes or improvements to the common property can only be done if all owners agree either by.

This article provides a brief overview and guidance of the governing law in WA, and touches also on some issues that we have seen arise from time to time concerning strata scheme common property.

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A Rare Insight into an Arbitration Agreement

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A Rare Insight into an Arbitration Agreement

Since the passing of Commercial Arbitration Acts (CCA’s) in all States of Australia,[1] arbitration is becoming an increasingly popular method of dispute resolution. However, because arbitrations are usually conducted privately, valuable data on arbitrations, and their subject matter, is limited. The High Court recently provided insight into the scope of arbitrations, in the decision of Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13, where it determined that the validity of an arbitration agreement was fit for determination by arbitration.

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Good faith in insolvency revisited

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Good faith in insolvency revisited

The recent Western Australian Court of Appeal decision of Hayden Leigh White in his Capacity as Joint and Several Liquidator of Port Village Accommodation Pty Ltd (in Liquidation) v ACN 153 153 731 Pty Ltd (in liquidation) (PVA)[1] reversed the decision at first instance in White & Templeton v ACN 153 152 731 Pty Ltd (in liquidation) (White)[2], with regard to the statutory defence for unfair preferences under section 588FG of the Corporations Act 2001 (Cth) (the Act), commonly referred to as the ‘good faith’ defence.

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After Killarnee: Another look at the Corporations Act priority regime

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After Killarnee: Another look at the Corporations Act priority regime

The Supreme Court of New South Wales recently had cause to give consideration to the Full Federal Court’s decision in Killarnee. The question before the Court in the matter of O’Keeffe Heneghan Pty Ltd (in liquidation); Aus Life Pty Ltd (in liquidation) and Rocky Neill Construction Pty Ltd (in liquidation) (KNF Construction) was whether the priorities prescribed by sections 433, 556 and 561 of the Corporations Act 2001 (Cth) (the Act) applied to the payment of debts or claims in the winding up of companies trading together as partners of a partnership.

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An Introduction to AFCA – the new ‘one stop shop’ for dispute resolution in the financial services industry

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An Introduction to AFCA – the new ‘one stop shop’ for dispute resolution in the financial services industry

The Australian Financial Complaints Authority (AFCA) is the new external dispute resolution scheme for the financial services industry. It replaces three previous schemes, namely the Financial Ombudsman Service (FOS), Credit and Investments Ombudsman and Superannuation Complaints Tribunal.

This article will provide a high level overview of the new AFCA scheme, highlighting some of the important differences from its predecessor schemes, particularly FOS.

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

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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.

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Creditors’ Best Interests: Have they Changed?

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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.

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Understanding Personal Guarantees: What you should know before signing

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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.

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