Some views on ASIC v Wily & Hurst

The views of Justice Brereton of the NSW Supreme Court have not prevailed following the decision by the High Court in the Carter Holt Harvey decision, but his findings in dismissing ASIC’s application for a court inquiry into the conduct of two liquidators going back to 2009, and for their registrations as liquidators to be […]

England’s approach to ‘phoenixism’ – joint and several liability

English law’s latest proposed reforms in relation to abuse of its tax laws through insolvency, including through ‘phoenixism’, seem to show its regime as less advanced than that of Australia. On the other hand, Australia’s large accumulated unpaid collectable tax debt of A$23.7b, plus A$7b ‘insolvency debt’, may not show our system working that well.  […]

Competing with phoenix operators, rather than combatting – a goverment liquidator

The World Bank has come out with reports[1] that support the Australian government’s attempts to control unlawful phoenix activity, by way of the creation of a government liquidator to handle a new streamlined process for handling the insolvencies of micro-small-to-medium size enterprises (MSMEs), the source of much phoenix activity. The reports sensibly examine personal and […]

Offence reporting in insolvency

In reporting breaches of the law to ASIC, and triggering action by ASIC, liquidators are not required to express any particular views or conclusions; or if they do so, they are not required to set out the basis for their views or conclusions, or even to have reasonable grounds for holding them before reporting. The […]

What’s up, or on, in insolvency, early in 2018?

The following commentary on submissions due, events and conferences, professional standards, international and local, hearings and case law*, all in relation to insolvency, may assist.  (*and gift cards).   Submissions to government Credit reporting of business tax debts Draft amendments to the Taxation Administration Act 1953 would authorise the ATO to disclose business tax debts […]

Professional ethics – Academy of Law Debates for 2017

A series of public debates on ethical conduct in the law, accounting and business was a significant contribution to this important issue made by the Australian Academy of Law in 2017. The debates called for audience contribution and involvement and attracted around 600 participants over the year. The last, in Sydney on 22 November, filled […]

QUT Law Review – a special issue on personal insolvency

Australia’s current major bankruptcy law reforms are necessarily informed by a range of academic and professional input, from here and overseas.  Papers from QUT’s major international personal insolvency conference in 2016 have just been published in the QUT Law Review, including a new account of details of the bankruptcy of our former Chief Justice, Sir […]

Guerilla tactics needed against phoenix misconduct

While the government is considering the various submissions on phoenix reforms, these quick thoughts came to mind, involving both government and computer selected liquidators, bankruptcy, public access to data, silo approaches, and modern slavery. And battle terminology.  The pervasive impact of phoenix and corporate misconduct continues to come up in a range of inquiries – […]

Why does the Federal Circuit Court not have corporate insolvency jurisdiction?

This is not a plug for the Federal Circuit Court of Australia, which sits below the Federal Court, but it asks why it has not been given corporate insolvency jurisdiction under the Corporations Act.  The unsatisfactory answer to that is suggested at the end of this article. Apart from its extensive family law and child […]

Where’s an economist when you need one?

R3 in the UK has commented on a recent OECD Report, about which we gave some views when it came out, in July 2017. As R3 says, the OECD report has concluded that the UK’s insolvency and restructuring framework is the most effective at “preventing a build-up of productivity-sapping zombie companies”, those “struggling companies aged […]