Year: 2017

Safe harbour – some inherent behavioural issues to overcome

While the new safe harbour law[1] is the end result of some years of torturous debate, still on-going, it is also only the start of what needs to be an on-going effort of trying to ensure its acceptance and application.  The first task is to understand and explain that mere words in the new section 588GA […]

Liquidators – let employees know about their rights to claim on FEG?

Mr Merante was an employee of a company for 15 years, from 2000 until shortly after it went into voluntary administration and then liquidation, on 22 June 2015. He missed out by 2 days on making a claim under the Fair Entitlements Guarantee scheme for his unpaid entitlements as an employee. Nothing could be done. Read […]

Financial failure, bankruptcy and mental ill health – 2019

There can be a connection between a person’s mental health and their financial distress. In business, one can feed off the other, likewise in relation to personal debts.  In the context of mental health training now being offered to insolvency professionals, through Mental Health First Aid, the following 2017 commentary is updated to 2019 and reissued. […]

“The human importance of bankruptcy”

The significance of bankruptcy and the need for its law to be clear and predictable is emphasized in a recent judgment of the Chief Justice of the Federal Court.  The judgment brings in issues raised by the Chief Justice in his 2015 speech about the significance of bankruptcy in public law. In a 2015 article entitled Values in Public […]

Black Economy Taskforce: Consultation Paper

The Black Economy Taskforce has released a discussion paper outlining a number of additional policy ideas which draw on its recent public and stakeholder consultations. It asks for responses quickly, by 14 August 2017. The 54 ideas outlined in the Taskforce’s paper are said not to be recommendations, but intended for public comment and reaction. […]

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 […]