India’s new insolvency professionals regime
A major new insolvency regime commenced in India in May 2016. It introduces co-regulation of insolvency practitioners – IPs – through direct regulation by their professional bodies – IPAs – which themselves are regulated by a government agency, the Insolvency and Bankruptcy Board of India. This is the English model, and likely to be the New Zealand model of insolvency […]
An expansion of the Banking Code, or is a change in the law needed?
The story about the conduct of bank officers in the Sydney Insolvency News prompts my suggestion for a widening of the banking code, or even a banking code. Similar “stories”, including my own, support this. SiN reported the story as “Grant Thornton Excoriated over Arrium”, GT being an accounting firm and Arrium being a mining company in […]
European Commission proposes new approach to business rescue in Europe
On 22 November 2016, the European Commission presented a set of new European rules for business insolvency which member states are to implement. These include similar restructuring approaches to those being considered in Australia, a focus on fostering entrepreneurial business conduct, and a need for the proper regulation and training of insolvency practitioners, including their […]
the Sakr Nominees appeal and well beyond …
Whatever is said in the pending NSW Court of Appeal decision in Sakr Nominees, it is timely to propose that, just as the government is assessing how to fund ASIC’s insolvency role, a similar but broader assessment is needed in relation to the funding of the insolvency system itself, from an economic perspective. Any developed country […]
Mad Dogs could not legally perform its contract in breach of insolvent trading laws
An insolvent company cannot legally continue to perform its contract by which debts are incurred. Hence it has no claim for repudiation of the contract by the other party. Gilligan’s Backpackers conducted a hotel business in Cairns. Mad Dogs was under contract to supply food and catering services at the hotel. On 26 September 2007 […]
One of the dark arts…..
A court appointed receiver applying to the court for determination of his remuneration was subjected to 2 days cross-examination on his evidence “in excruciating detail”, with “thousands of pages” of documents being filed. In saying that the assessment of remuneration and costs is “one of the dark arts”, the Judge cut the remuneration substantially, but […]
Liquidator’s remuneration approved, and power of sale confirmed
In yet another decision on remuneration, and the power of a liquidator to sell trust assets to recoup that remuneration, a Court has found that remuneration was properly claimed on a time basis, and that the liquidator’s exercise of the power of sale over trust assets were not unreasonable. No drama. See In the matter of […]
A lesson in Chinese law from Donald Trump
President-elect Donald Trump is, apparently, litigious, with, it is said, at least 3500 in the US federal and state courts. He has also been a litigant in China – indeed the first president elect of the United States as litigant – where he lost. Some years ago, Trump had attempted to register his TRUMP trademark […]
Trusts and liquidators’ rights of indemnity – whose decision is “universally regarded as incorrect?”
In determining that liquidators had a right of indemnity, and priority, over trust property for payment of their remuneration and expenses, the Victorian Supreme Court has said it was “bound to follow” the long established South Australian decision in Re Suco Gold, and to decline to follow the recent NSW decision in Independent Contractor Services. […]
Late payers – what to do? and the ATO wants to know as well
An inquiry into late payments to creditors has been commenced by the Australian Small Business and Family Enterprise Ombudsman. A report is due by March 2017. The inquiry aims to establish an accurate picture of the trends in payment terms that have emerged in recent years in commercial arrangements between large and small businesses as […]
Pre-packaged insolvencies – new English standards from 1 December 2016
Australia’s law reform aversion to pre-packaged insolvencies – “pre-packs” – compares with a process of their cautious acceptance and continual refinement in England. A new Statement of Insolvency Practice has been issued in the UK – SIP 13 – Disposal of Assets to Connected Parties in an Insolvency Process, which supports the guidance and rules […]
Is an ipso facto contract termination “unfair” on a small insolvent business?
New laws have commenced under the ASIC Act and Australian Consumer Law extending unfair contract term protections to small businesses. The law allows “unfair” and “standard form” contract terms to be declared void and allows for the contract to continue to bind a supplier, for example, if the contract can operate without the unfair term. An argument may […]
Australia’s draft Insolvency Practice Rules 2016 – some issues
The draft Insolvency Practice Rules raise a few fundamental issues about due process – natural justice, professional body involvement, confidentiality and transparency, being covered by me at the Traill 4th National Bankruptcy Congress on 14 November 2016; and also about ordinary insolvency process – communications, service by post, time limits, and the telephone….. The rules are […]
Reasons for Queensland Nickel’s Special Purpose Liquidators being Appointed?
Special purpose liquidators have properly been appointed by the Federal Court to some aspects of the Queensland Nickel companies of Clive Palmer but it would have been useful to know, from the Court, why. In any event, the High Court has dismissed Mr Palmer’s constitutional challenge to examination summonses issued at the request of those […]
Special purpose liquidators – merely a creditor’s whim?
Insolvency law has a mixed view of its liquidators. On the one hand they are said to be of the highest integrity, qualified and experienced, officers of the court, exercising quasi-judicial authority, investigating misconduct and pursuing public interest issues. On the other, they are seen as being susceptible to bias in favour of the […]
Joint insolvency regulat(ion)
The bankruptcy regulator, AFSA, has announced a new approach to its regulation of the 200 trustees in bankruptcy in Australia, focusing more on a trustee firm’s systems and controls and how or whether they serve to allow the trustee to meet the various legal and professional requirements. This more streamlined approach, coupled with the insolvency reforms coming […]
Traill Bankruptcy Conference – much better than the corporate alternative
Read the funding proposal for ASIC’s regulation of liquidators and understand why bankruptcy is so much more advanced. Corporate insolvency practitioners, lawyers and academics should attend the Rosie Traill Bankruptcy Conference on 14 November 2016, in Sydney, to find out how and why. Bankruptcy is the poor relation of insolvency law, with more professional, academic and media attention […]
Beneficial ownership of companies, and access to ASIC data
The government has invited us to “have our say” on what it says is “Australia’s first Open Government National Action Plan”, the draft plan being opened for public consultation on 31 October 2016. This express the government’s “ambitions” in a number of worthwhile areas. A beneficial ownership register for companies Many aspects of the Plan […]