Law – a noble pursuit or a profit centre? The Australian Academy of Law’s second ethics debate
A lively debate between senior lawyers from the bar, the big firms, the regulator, and community legal centres was held on 20 June, with a disruptive ethicist adding to the discussion on whether law is a profession or a business, a “noble pursuit or a profit centre”. The debate was held in the ceremonial court […]
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 […]
Protected: Law reform fixes needed to ensure protection of trustees and liquidators
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Ordinary course of post – seven business days not four
Section 160 of the Commonwealth Evidence Act 1995 is proposed to be amended to change the day when posted letters are presumed to be delivered “in the ordinary course of post”. The Civil Law and Justice Legislation Amendment Bill 2017 would change the presumed timing of delivery from the fourth to the seventh business day after posting. That […]
Maritime review of the year
The Murrays Legal were pleased to attend the annual presentation at Norton Rose Fulbright on international maritime law developments given on 22 June 2017 by Professor Martin Davies of Tulane University Law School, and a Professorial Fellow of Melbourne Law School. These and other cases were discussed. Reiter Petroleum v The Sam Hawk What was […]
“with all due respect an exceptionally opaque process in changing important aspects of company law”
A judge is very critical of the “Henry VIII” process by which the commencement date of the Insolvency Law Reform Act 2016 has been deferred. As Justice Robb, of the NSW Supreme Court explains, Part 10.25 of the Corporations Regulations was inserted by reg 4 and sch 11 of the Corporations and Other Legislation Amendment […]
Rough bankruptcy justice all round …?
Where a person has wrongly been made bankrupt, the court will usually remedy the problem by setting aside or annulling the bankruptcy. While the inevitable legal costs are divided up by the Court between the creditor and the debtor, depending on their degrees of responsibility, the remuneration and legal costs and other expenses of the […]
ASIC’s 2017 annual report – what to expect in insolvency regulation
Report 532 ASIC’s regulation of registered liquidators: January to December 2016 is a rather dense and detailed report which explains what work ASIC has been doing in its regulation of company liquidators. But ASIC’s 2017 annual report will be of more interest for the insolvency profession. The 532 Report “details the supervisory, enforcement, stakeholder liaison, policy […]
The AAT strikes back
Mr Dutton, the immigration minister, has been found wanting in refusing an application by a Mr Singh for a 6 week bridging visa, based upon his conviction (Singh’s), on a plea of guilty, of indecent assault. Justice John Logan of the Administrative Appeals Tribunal (AAT) rejected Mr Dutton’s decision to refuse the visa, giving his reasons in a 23 page […]
Contempt of court – “arguing for days on the exact length of the split in the hair”
Immigration law and policy and has been a contentious issue in Australia, with newspapers and politicians often infuriated by interpretations of that law by judges and tribunals “failing to keep Australia white”, perhaps for the sake of sales and votes in “this great country”, but without much rational thinking in support, or at least little […]
Is “outrageous” too strong a term to describe some of our new insolvency laws?
The question as to what parts of the Insolvency Law Reform Act 2016 have commenced may be unclear to some but various provisions are being applied by the Judges as having commenced on 1 March 2017. A consequence is that we can find out at an early stage the views of the courts on the new […]
A safe harbour from our harsh insolvency laws?!
The “safe harbour” reform bill has been introduced into federal parliament to address directors’ “medium risk” of liability for insolvent trading. The reform represents a significant shift in favour of directors and their companies. This is a “carve out” not a defence; to the extent that a defence is required it is to the level of an […]
Accountants and NOCLAR – more than a systems update
Professional accountants in Australia will soon be bound by a new standard that could require them to report offences to the police, or, in accountants’ language, “non-compliance with laws and regulations”, or NOCLAR. This new obligation raises a number of issues which, while no doubt in hand, may involve more than an “update of systems” as the standard […]
Creditor’s examination summons of a liquidator upheld
A creditor’s summons for the section 596A public examination of the liquidator about his sale of company property has been found not to be an abuse of process. The appeal court overruled the trial judge who had found that the examination was a “substantial intrusion into the liquidation”; and that the creditor’s wish to explore the […]
Penalty privilege – one says hello, the other says goodbye
There are at least two unsatisfactory stories in this. The first one first. The High Court’s decision in Rich v ASIC was big news in 2004, finding as it did that “penalty privilege”, a component of the common law right to refuse to self-incriminate, extended to disciplinary and disqualification proceedings. The government responded in 2007, […]
What work was involved in this liquidation and why did it take the time and resources claimed?
A liquidator’s remuneration claim of over $350,000 for conducting the winding up a country dental practice involving 24 of his staff spending over 940 hours of time is being queried by the NSW Supreme Court. While the Court acknowledged that the liquidator was entitled to a large amount of remuneration, he needed to give more explanation of his […]
When litigation goes wrong – costs certificates
Legal costs of parties to an appeal may be met by the government, to a certain amount, if there was some unfortunate outcome or circumstance in the trial hearing. The purpose of the various state and federal costs laws is that litigants should not be financially disadvantaged by a wrong application of the law by a […]
Is the end result of Sakr Nominees continued “institutionalised time billing”?
While the insolvency profession might be satisfied with the final approval given to the liquidator’s remuneration, by Justice Ashley Black, in Sakr Nominees Pty Limited [2017] NSWSC 668, unthinking applications of the various judicial statements about proportionality can lead to unreasonable, and unfair, results. But an increased focus on legal fees, and other developments outside insolvency, put the decision into a lesser perspective. […]
A New Zealand Ponzi – the final outcome of McIntosh v Fisk
The second report of the NZ insolvency working group had deferred consideration of the application of the voidable transactions regime under the Companies Act and the prejudicial dispositions regime under the Property Law Act pending a decision of the NZ Supreme Court. That decision has now been given, on 26 May 2017, confirming the Court […]
External dispute resolution and complaints framework, and “debt managers”
Whether or how to regulate “debt management” firms comes up in the government’s decision to accept all 11 recommendations of the first comprehensive review of the EDR framework from an expert panel chaired by Professor Ian Ramsay. Debt management “services” can range from advice on the pre-insolvency unlawful hiding of assets, to “debt repair”, to advice on […]
Penalising insolvent companies – a King Charles I comparison
Regulators seeking penalties against companies in liquidation often reveal, as I have recently commented,[1] some serious signs of frustration that their quarry has escaped their claims by going into liquidation, leading to the regulators, as I have also written, “kicking the company when it is down”.[2] Justice John Logan saw it this way in Commissioner […]
Australia today
“… Nazi troops responded to this secret emigration campaign by inspecting all Danish boats, using specially trained dogs to sniff out hidden Jews. To combat this problem, Swedish scientists developed a unique solution”. … Danes and Cocaine, 2016. “The game’s up”: Australian Immigration Minister Peter Dutton said the October 1 deadline would sniff out “fake […]
“Straw directors”? no kidding!
The federal government is putting through laws that would give directors of companies greater latitude to incur debts that cannot be paid, with a view to assisting the process of restructuring their financially struggling company. This “safe harbour” reform has been on the directors’ agenda for some years. There are legitimate reasons for it, qualified by the following […]
Friendly and ‘friendly’
With the rather confusing term ‘friendly liquidator’ continuing to be used: by the media: Dirty Deeds: Inside Australia’s Biggest Tax Scam – ABC News; reported in court decisions – “the boys will arrange a friendly liquidator who they pay off to liquidate the company. [X] knows plenty of dodgy liquidators”: R v Anquetil [2021] NSWCCA […]
