Directors’ identities, their home addresses, and more
With Australia having just closed its consultation on allowing company directors to have a director identity number (DIN), it is useful to see the broader perspective being taken in New Zealand to that issue, and in other countries. Beneficial ownership of companies New Zealand is in the midst of a consultation on opening up access […]
Gift card reform – “a GIFT, not an investment”? or “there should be NO expiry EVER”?
Federal Treasury has closed its public consultation on an exposure draft of the Competition and Consumer Amendment (Gift Cards) Bill 2018 and explanatory materials. Gift cards draw out a range of emotional responses. The Bill would amend the Australian Consumer Law: mandate minimum three year expiry dates for gift cards; require gift cards to display […]
Bankruptcy Bills to become Law?
The draft legislation program for the Senate for next week commencing Monday 20 August 2018 lists, among other Bills, the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 for debate on Monday, after 12.20pm, and the Bankruptcy Amendment (Debt Agreement Reform) Bill 2018, for Tuesday afternoon, 21 August 2018, after 12 noon. The new 10th edition of […]
Amerind – special leave granted
The story goes that a Supreme or Federal Court that convenes a larger bench than usual to hear a matter of importance is like a red rag to a bull when it comes to the High Court deciding whether the grant special leave to appeal from that decision. Whether that be the case or not, […]
One year bankruptcy and other changes – updated and corrected
[commentary of 10 August 2018 corrected and updated as at 14 August 2018]. With parliament having resumed on Monday 13 August, we may see the debate on the one-year bankruptcy bill,[1] although not, it seems, the debt agreement bill.[2] While that Bill was listed for debate on the evening of 13 August, it was not […]
Academy of Law – access to justice, free speech on campus, science v law
The second public debate held by the Australian Academy of Law in its series on Access to Justice was held on 26 July 2018. Meanwhile, many other Academy talks and debates are coming up. The focus of the 26 July debate was on overcoming financial barriers to access to justice. This involves not just money […]
Judicial inconsistency ‘should not be repeated’
The need for judicial consistency, between different appellate courts, was recently reiterated by the High Court in The Queen v Falzon,[1] in relation to the law concerning the use of cash of the accused as evidence in drug trafficking prosecutions. There are other options if the High Court’s entreaties are not followed. The doctrine of […]
Australian Academy of Science and Australian Academy of Law – Joint Symposium
The Australian Academy of Science and Australian Academy of Law are holding what is the first joint symposium between the two academies and their respective disciplines on Thursday evening 23 August in Sydney. The topic for debate is ‘Are You Sure?’ This will involve discussions around: – scientific certainty compared with legal certainty, and scientific […]
Insolvency and the environment – some law reform suggestions
While we await some pending developments in the areas of tension between insolvency law and environmental law, including the High Court’s consideration of an application for special leave to appeal in Linc Energy, a useful Australian article has come out of the recent INSOL Academics conference in London[1] which adds to the debate. Symes’ Environmental […]
Bodies everywhere – the regulation of liquidators and trustees
One of the most unusual reforms introduced by Australia’s 2016 Insolvency Law Reform Act was to give a large number of professional bodies, and government departments, most of them unconnected with insolvency, a role in the regulation of insolvency practitioners. Unusual because such a legal regime seems unprecedented in Australian law, and also because all […]
Intellectual property in insolvency
QUT Law School and Professor Rosalind Mason hosted a talk by US Professor Jason Kilborn of John Marshall Law School, Chicago, on 19 July 2018, in Brisbane. His topic was Technology and Regulatory Black Holes: Issues in Protecting IP Rights in Insolvency for Both Licensors and Licensees. As his paper explained, intellectual property (IP) rights […]
A government liquidator, and more
Problems arising from Australia’s lack of a government liquidator have probably been hidden for some years by the choice of the profession to take on assetless liquidations, whether through some sense of duty, or some sense of risk taking that the matter may in fact be interesting paid work and that assets may be recovered. […]
Winding up a collective investment vehicle – submissions were due by 10 August
The publication of the 2015 book Insolvent Investments, edited by Stewart Maiden QC (LexisNexis), may have been a surprise to those who developed our managed investments schemes (MIS) law in the 1980s and 1990s. A series of inquiries and reports recommended ultimately what became Part 5C of the Corporations Act; but scant attention was given […]
The cost of unlawful phoenix activity – yep ….
PWC’s June 2018 report on the cost of phoenix activity – The Economic Impacts of Potential Illegal Phoenix Activity – is interesting but it confirms much of what we know, including that since PWC’s last report, some years ago, not much impact has been made by the government and its regulators. The government would be […]
The Chorley exception – barristers included
This is a postscript to an earlier post about the Chorley exception, a legal rule that although self-represented litigants are not entitled to professional costs in acting for themselves in court proceedings, there is an exception where a solicitor is self-represented. It is named after the decision in London Scottish Benefit Society v Chorley (1884) […]
Consultation on director identity numbers – responses by 17 August 2018
In the 2018-19 Budget, the Australian government announced that it would modernise the Australian Business Register (ABR) and the ASIC business registers on a platform to be administered by the Australian Business Registrar within the ATO. One aspect of that is the implementation of a Director Identity Number, DIN, on which the Treasury is asking […]
A bankrupt’s travel overseas
Australia is on the outer internationally in imposing restrictions on those who are bankrupt from travelling overseas; they are required to obtain the permission of their trustee to do so. This perhaps arises from our continued punitive perception of bankruptcy, from our insular geography, and maybe also from the infamous and permanent overseas departure of […]
Overcoming financial barriers to justice – a public debate – 26 July 2018
Dr Warren Mundy, the economist who was the Presiding Productivity Commissioner on the 2014 report on Access to Justice Arrangements, is chairing a public debate on that topic on 26 July 2018 for the Australian Academy of Law. The particular topic is the means of overcoming the financial barriers to justice. The panellists represent cross-sections […]
New Zealand’s changes to its insolvency laws
Proposed changes to NZ insolvency laws through the Insolvency Practitioners Bill, presently before parliament, are open for submissions until 24 August 2018. The changes involve conflicts of interest, demand notices, reporting of ‘serious problems’ and more. Some ideas and drafting look like they have been borrowed from Australian law – some wisely, others not wisely […]
Demands by liquidators – trying their luck, or “no ifs, buts or maybes”?
If anyone receives a letter from a liquidator of a company requesting, or demanding, important information, or payment of a sum owing, the recipient should be able to make an assumption that given the position and status of liquidators (and trustees in bankruptcy, both as registered insolvency practitioners), that there is legal and factual substance […]
The perils of loud letters of demand
A creditor being paid its debt following a letter of demand can be a Pyrrhic victory, if the debtor ends up in insolvency and the liquidator or trustee demands the payment back from the creditor as an unfair preference. The liquidator or trustee has to show that the creditor reasonably suspected that the debtor was […]
The Internationalisation of Directors’ Duties – Melbourne seminar – 30 July 2018
Directors of companies that trade overseas, and directors of subsidiaries of overseas companies, may have duties imposed upon them by foreign law and be subject to the jurisdiction of foreign courts, especially where the companies are approaching insolvency. Legal advisers have to be aware of the potential for those liabilities to arise and have to […]
Fallout from a shipping trillision – Part 2
In Part 1 of this case report, the outcome of a three ship collision – a trillision – causing the total loss of a cargo soybean meal was that the cargo underwriter, the People’s Insurance Company of China (PICC), remained liable to pay even though the particular terms in the bill of lading exempted the […]
Structural weaknesses in the Model Law on Cross-Border Insolvency?
Cross-border insolvency law necessarily tries to ensure that insolvency proceedings about a debtor in different jurisdictions are co-ordinated and fully disclosed to the court. The Model Law on Cross-Border insolvency imposes requirements on parties to ensure that. Inattention to those requirements by foreign representatives occurred in two recent cases in Australia. These were the subject […]
