Insolvency and trust law – a legislative solution is needed regardless of the High Court’s views
While the High Court no doubt gave special leave to appeal in Amerind under the statutory criterion of resolving legal uncertainty, two recent papers suggest that legislative reform will be required regardless of what the High Court decides. The High Court is not being called upon to decide an unsettled legal point, or the interpretation […]
New Zealand insolvency practitioner reforms
Submissions on proposed major changes to NZ insolvency laws through the Insolvency Practitioners Bill, presently before parliament, closed on 24 August 2018 and the Bill is now listed before the Economic Development, Science and Innovation Committee of Parliament on 6 September 2018. The changes under the Bill involve the introduction of a co-regulatory arrangement whereby […]
‘Employee’ claim rejected – he was a contractor, and a de facto director
A ‘employee’s’ claim for payment of unpaid wages by a company in liquidation was rejected by the department under the Fair Entitlements Guarantee Act 2012 (the FEG Act). The FEG Act provides financial assistance for employees who have not been fully paid for work done for a company to which a liquidator is appointed. Directors of […]
Bankruptcy statement of affairs
The bankruptcy office – the Australian Financial Security Authority – is asking for comment on a revised form of “statement of affairs”, the list of assets and liabilities and other information that persons made bankrupt are required to complete: s 54 Bankruptcy Act. AFSA says it has adopted a ‘human-centred approach’ to the design; and […]
Liquidators’ examinations – not the same judicial restraint in Australia as in England and NZ
As the Full Federal Court has just confirmed, an Australian liquidator may conduct a public examination of a prospective or actual defendant to the liquidator’s claim in order to assess the worth of that person in being able to meet any judgment that the liquidator might obtain. But as the New Zealand Court of Appeal […]
Linc Energy – High Court special leave hearing 14 September Brisbane
The High Court is hearing the special leave application from the Queensland Court of Appeal decision in Linc Energy on Friday 14 September 2018 in Brisbane. The issue concerns the rights of liquidators to disclaim environmentally damaged land with constitutional, environmental and economic issues raised in the circumstances leading to the litigation. My earlier comments […]
Keay’s Insolvency – a law reform launch
The recent launch of the new 10th edition of Keay’s Insolvency prompted some pointed comments about the current insolvency system and suggestions about law reform – including safe harbour and pre-packs, the need for a holistic approach rather than the present ‘tinkering’, and the limitations imposed on the effectiveness of insolvency laws by the existing […]
Major insolvency reforms for the UK – elements of US Ch 11 and schemes
The UK government has announced[1] major insolvency law reforms that would significantly advance the flexibility required for restructuring financially troubled businesses. The reforms would adopt elements of US Chapter 11, with directors remaining in control throughout the period of a statutory moratorium against creditor claims, but under the supervision of an appointed monitor. The monitor […]
New family law court structure introduced into parliament
The Federal Circuit and Family Court of Australia Bill 2018 (FCFC Bill) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 have both been read in parliament. Both were immediately referred to the Senate Legal and Constitutional Affairs Legislation Committee, with its report due by 15 April 2019. […]
Protected: Statement of affairs in bankruptcy being revised
There is no excerpt because this is a protected post.
Uniformity in corporate law – the High Court’s grant of special leave in Amerind
A comment in the Victorian Court of Appeal (VCA) decision in Amerind may not have found favour with Justice Gageler at least when the question of whether to grant special leave to appeal from that decision was being considered by the High Court on 17 August 2018. The Court of Appeal at [286] said that […]
Proportions of bankruptcies – a factor of 8.8 in Australia, but only 3.4 in England and Wales
While waiting to see if Australia’s parliament decides to introduce a one year period of bankruptcy, down from the current three, a meander through some personal insolvency statistics from England and Wales (EW; Scotland and Northern Ireland report separately) shows quite different figures and proportions from the numbers in Australia. This very loose extraction of […]
Guardianship and bankruptcy – NSW law reform report misses the point?
A father who suffered a debilitating stroke left his son with the legal difficulty, in a quagmire of state and federal laws, of trying to deal with his father’s insolvency arising from his large accumulated debts. The father suffered a significant cognitive impairment, with no mental capacity to decide to make the legal and financial […]
UK’s “small proportion of bankruptcies where there has been misconduct leading up to the individual’s insolvency”
With the Australian parliament about to decide on the reduction of the period of bankruptcy from three years to one, there is some adverse reaction to the reform, said to be typical of Australia’s attitude to debt, that the lesser period will provide greater opportunity for debtors to avoid the consequences of bankruptcy by hiding […]
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 […]
