Month: July 2017

Banking & Financial Services Law Association Conference – 31 August-2 September

The Banking and Financial Services Law Association is holding its annual conference in Brisbane on 31 August-1 September 2017, in Brisbane. Its pre-eminent judicial speakers are Lord Justice Richards of the Court of Appeal of England and Wales; Justice Beazley, President of the New South Wales Court of Appeal; and Justice Asher of the New Zealand Court […]

Banks in [financial] crisis; dispute resolution; farm debt mediation, and more

My preparation for a major banking and financial services conference[1] has prompted this quick review of where Australia is at with banking and insolvency related reforms, being a small but important subset of the long list of other insolvency law reforms and recommendations floating around. While the term insolvent is usually used in describing a […]

Liquidators – have your “policies and procedures” handy, or “propose to put them in place”, soon

New section 30B of the ASIC Act allows ASIC to ask a liquidator to produce the ‘policies and procedures’ relating to external administrations and receiverships that the liquidator ‘has adopted or proposes to adopt’ in their firm, as well as information on the liquidator’s past, current and ‘proposed’ administrations.   These must be supplied even if this involves the liquidator […]

An extraordinary legal imposition on our Immigration Minister

The Daily Telegraph is right this time, it was an extraordinary finding by a court,[1] to expect our immigration politician Mr Dutton to have “engaged intellectually with each particular matter” [my emphasis] in making his rapid-fire decision whether to cancel two visas, in particular having to have read the relevant documents and then intellectually to have […]

Seven Network v Harrison – costs orders and bankruptcy

The circumstances of Amber Harrison flowing from the decision of Justice Sackar in Seven Network v Harrison[1] prompt this comment on how legal costs ordered to be paid by a losing party are dealt with if that person goes bankrupt. It all depends on the timing.  A costs order made the day after a person’s […]

International insolvency regulation – London 2017

The annual meeting of the International Association of Insolvency Regulators, IAIR, is being held in London, from 4 to 7 September 2017. Given its timing, it may well be a show case for Australia’s recent regulatory reforms, and funding arrangements, for insolvency practitioners. But, what does IAIR offer or provide? IAIR says it “aims to promote […]

England’s review of its insolvency code – independence, remuneration and more

The question of insolvency practitioner independence is important given the role of a company liquidator and bankruptcy trustee. Independence rules are being reviewed in England, and the rules associated with remuneration arrangements, in light of changes in commercial and professional practice. The Joint Insolvency Committee refers to “non-traditional routes to market, advertising, websites, lead generators and purchasing […]

NZ accountants’ new Code obligations, with Australia close behind

Accountants in New Zealand, including those who are insolvency practitioners, are from this week required to refer relevant breaches of the law committed by their clients or employers to the authorities. Australia follows suit on 1 January 2018. What are the implications for insolvency accountants, and in “safe harbour”? “NOCLAR” obligations under the international Code […]

Very leviable liquidators

In anticipating the funding bases for the government meeting ASIC’s costs of regulating insolvency practitioners (IPs), I wrote that there “should be some comfort taken from the fact that the legislation is being handled by Treasury which, with its economic and financial accountability focus, will ensure that ASIC’s claimed costs are necessary and properly calculated, and […]

Melbourne Insolvency Forum Conference – Tokyo, Japan – 23-27 August 2017

An insolvency conference, said to be a Taste of Japan. There is a very good article in the International Insolvency Review entitled Appointing and Remunerating Insolvency Practitioners in Japan: The role of Japanese courts which is no doubt on the conference agenda. There is another article, about to be published, looking at the Australian insolvency reforms […]

Director charades continued

After giving directors the benefit of protection from liability for insolvent trading, through the ‘safe harbour reforms’, the government has not required of directors that they at least verify who they really are to start with. The most authoritative reports on countering unlawful phoenix activity that we have are those three produced by Melbourne and […]

Protocol for International Recognition of Insolvency Proceedings Affecting Natural Persons

As INSOL International explains, this Protocol of June 2017 is a project that has been completed by members of the INSOL Small Practice Issues Committee. The foundation of the Protocol is the promotion of automatic recognition of insolvency proceedings for individuals, either as consumers or sole traders, where there are few assets available to fund court […]

Getting rid of liquidators

While no-one in business likes losing a client or customer, usually, it happens all the time, as a matter of commercial choice. Insolvency practitioners – IPs, being trustees in bankruptcy and company liquidators – are not your average business operators. They have no clients or customers, are often appointed by a court and they have […]

Advanced Business Law Conference – the major insolvency reforms: 3 October 2017

I am presenting at the Advanced Business Law Conference at the College of Law in Sydney on Tuesday 3 October 2017. My topic is what the program describes as the Major Personal and Corporate Insolvency Reforms in 2017-2018, described as being “the most extensive reform of insolvency law in a decade”. That statement may in fact […]

Bankruptcy and mental incapacity

A son was obliged to ‘forum shop’ in order to assist his debt-laden father go into voluntary bankruptcy.  The father had suffered a stroke leaving him with severe cognitive impairment. The son tried to put his father’s estate into bankruptcy in Queensland, where the father lived, but had to eventually rely on WA guardianship laws to enlist bankruptcy protection.    Reform […]

Environmental and insolvency law – parallel appeals in Australia and Canada

Australia’s odd constitutional arrangements have allowed a State environmental protection law to prevail over Commonwealth insolvency disclaimer law, in Linc Energy Ltd (in Liq) [2017] QSC 53. The reverse scenario is being played out in Canada, where federal insolvency disclaimer law has been held to prevail over provincial – Alberta – environmental law: Orphan Well Association v […]