One ship has berthed – the insolvency and trust law decision in Amerind

The Victorian Court of Appeal has resolved, for the moment, the complex issue of how a corporate trustee’s right of indemnity is to be dealt with upon a winding up, finding, contrary to the trial decision, that the Corporations Act and its insolvency priorities apply. See Commonwealth v Byrnes & Hewitt [2018] VSCA 41.  Significantly […]

What’s bankruptcy all about?

Would you get out of bed in the morning, as an unsecured creditor of a bankrupt, for a dividend return of 0.83 cents in the dollar, or even, a bit more, 1.30 cents the dollar?[1] These are the average dividend payments to creditors in bankruptcy. What some might call a derisory 0.83 comes from bankruptcies […]

Lawless, oxymoronic insolvency law – the mining regulators aren’t happy.

This comment updates our recent commentary on the complicated intersection between insolvency law and environmental regulation. There are now at least five recent events relevant to this intersection the pending decision of the Queensland Court of Appeal in Linc Energy, being the first, then: the Supreme Court of Canada hearing in Orphan Well Association v […]

Restricting insolvency disclaimer rights in mining company failures?

The possibility of the West Australian government legislating to get around the insolvency disclaimer provisions of the Corporations Act was again raised before a Senate hearing this week; my earlier comments are here.  This mirrors similar issues in Queensland – Linc Energy and the Queensland government’s reliance upon section 5G of the Corporations Act – […]

Avoid misleading cases – cite the latest court decisions

With all the numerous decisions being delivered by the higher courts, some attention is needed to ensure the latest case law is relied upon. Justice Derrington of the Federal Court recently took issue with the lawyers appearing in a matter before him because they relied upon a decision of the SA Supreme Court that had, […]

ASIC before the PJC – phoenix, DINs, AA Fund and the continuing 3 sins of liquidators

This is a very brief commentary on and extracts from evidence given by Mr James Shipton and others from ASIC before the Parliamentary Joint Committee (PJC) on Corporations and Financial Services – Oversight of the Australian Securities and Investments Commission and the Takeovers Panel, on 16 February 2018. The full transcript is available here. Phoenix […]

The tragic personal consequences of the collapse of Banksia securities

This does no more than set out the opening paragraphs of Justice Clyde Croft’s judgment of 16 February 2018 about the 2012 collapse of Banksia Securities, “owing some $660 million to investors, including many retirees in regional and rural communities in Victoria. … Any judge hearing applications of the kind presently before the Court could […]

A guide for those dealing with clients experiencing mental health and financial stress

Following some articles last year dealing with mental health issues and financial difficulties – see for example Financial failure, bankruptcy and mental ill health, and Mental health and bankruptcy, a guide has been issued by Mental Health First Aid for use by members of CAANZ, accountants being closely involved in assisting clients on financial issues. […]

Cleaning up the law – WA’s old diamond and other mines

The collapse of WA’s Ellendale diamond mine, and the liquidators’ prompt disclaimer of the mining site, leaving the clean up costs for the WA government, raises yet another difficult intersection between mining regulation and insolvency law. COAG has been enlisted to propose a national approach. At a time when unfunded environmental clean-ups after mine closures […]

Cleaning up after a failed miner – who pays: Part 2

This commentary highlights a confluence of 4 events concerning the complicated intersection between insolvency law and environmental regulation, one event being a Senate hearing on 14 February in Canberra.   My previous comments on this are Cleaning up after a failed miner – who pays? 1. Linc Energy; and 2. Redwater – Orphan Wells v […]

The wider context of the proposed one-year period of bankruptcy

Many less than 1% of bankrupts warrant an objection to discharge from their bankruptcy, trustees leave it til the last moment to lodge objections, and creditors generally get back on average $100 for their unpaid debt. What is this issue all about? Is there a wider context? The proposed reduction in the period of bankruptcy […]

ASIC and one-year bankruptcy, AUSTRAC, a fees claim settled, and more …

The following further commentary on insolvency – submissions due, events and conferences and case law – may be of interest. For example, how many objections to a bankrupt’s discharge are lodged with AFSA each year? How does ASIC say it might react if the one year bankruptcy proceeds; Mr Shipton’s first appearance before a joint […]