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) reversed the decision at first instance in White & Templeton v ACN 153 152 731 Pty Ltd (in liquidation) (White), 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.Read More
Most people think that if you pay for something, it is yours to do with whatever you want. That is not necessarily the case with building plans, as a case decided in the Supreme Court of Western Australia recently demonstrated.Read More
Despite over 7 years having elapsed since the Personal Property Securities Act 2009 (PPSA/Act) came into effect, there remain quirks in the way the Act impacts on certain aspects of perfection and enforceability of personal property security interests in Australia.Read More
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.Read More
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.Read More
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
In the following case note, we turn our attention to a recent Victorian Court of Appeal decision which may offer some guidance to those seeking clarity on the position of accessories potentially exposed to allegations of a breach of trust or fiduciary duty.Read More
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
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
Lee Christensen, of Christensen Partners and Bonnie Scovell of Edwards Mac Scovell return with a follow-up to their previous article How is a Liquidator to Deal With Trust Assets in a Liquidation? Finally an Answer is on its WayRead More
The recent case of Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd  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.
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
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.
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
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.
Lee Christensen, of Christensen Partners and Bonnie Scovell of Edwards Mac Scovell provide an update to the insolvency market on some pressing legal issues that will soon be determined by the Full Federal Court.Read More
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
A recent decision of the Court of Appeal of Western Australia, Blenkisop v Herbert  WASCA 87 (Blenkinsop) provides some much needed guidance on the issue of whether a guardian of a discretionary trust is a fiduciary.Read More
A recent decision in the New South Wales Court of Appeal, Sanderson as liquidator of SAKR Nominees Pty Ltd (in liquidation) v SAKR  NSWCA 38 (Sakr), has settled an uncertain position with respect to the remuneration of liquidators, particularly in low asset value liquidations.Read More
A recent decision of the Queensland Supreme Court, Ashala Model Agency Pty Ltd (in liq) & Anor v Featherstone & Anor  QSC 121 (Ashala) may potentially widen the scope of pursuit for liquidators seeking to claw back voidable transactions under the Corporations Act 2001 (Cth) (Act) in a liquidation.Read More