Dangers in liquidators running a ‘skinny case’
” … it might not be seen to be unreasonable [for insolvency practitioners] to avoid expending funds producing affidavits in relation to issues which might ultimately be agreed upon”. But .. All litigants and their lawyers have obligations to pursue matters economically, or, in the Federal Court, according to the ‘overarching purpose of the civil […]
All over a rooster
A bankrupt who claimed that noise attributed to her unauthorised rooster was in fact made by her peacock, which was disturbed by someone pulling feathers from a kookaburra, has been declared a vexatious litigant by the Federal Court. In earlier proceedings, a NSW court had verified the identity of a rooster on her property as […]
Special administration of an Aboriginal Corporation – Urapuntja Health
A major Aboriginal corporation in Australia’s Norther Territory – the Urapuntja Health Service Aboriginal Corporation – has been placed under the control of “special administrators” by the Registrar of Indigenous Corporations.[1] This followed serious upheavals in the local communities and physical and other risks to staff of the Service, and the potential disruption of essential […]
ARITA’s response to the Ombudsman’s small business insolvency inquiry
ARITA has offered a 60-page submission to the Ombudsman’s inquiry, which, given the quality of the inquiry, may be rather excessive but is nevertheless useful. It may also be seen as surprising, given ARITA’s criticism of the Ombudsman’s inquiry, which, as ARITA has explained, was announced only 2 months after ARITA had written to all […]
A liquidator disciplinary decision – some regulatory insights
A decision of a tribunal in Australia gives some insight into the insolvency practitioner discipline processes introduced in 2017, which replaced, in corporate insolvency, a more formal hearing type process. A liquidator’s registration was cancelled by a discipline committee convened under the Corporations Act 2001 which then sought to have its reasons for decision published.[1] […]
Selfies of Australian insolvency practitioners – not looking good …?
A recent Australian academic thesis reveals an insolvency industry comprising practitioners with low self-identity, lacking in self-confidence and with a limited outlook. The thesis research is based on anonymised interviews with a wide range of corporate insolvency practitioners having a particular focus on the impact of recent law reforms, on ASIC and ARITA, and on […]
The 2020 insolvency practitioner codes
New insolvency practitioner codes have issued in Australia, with the UK and NZ perhaps not far behind. It remains to see whether the codes are adaptable enough to reflect what is a changing business and professional environment and thereby to remain relevant and accepted. The international accounting Code of Ethics – APES 110 in Australia […]
Ombudsman’s insolvency inquiry and the nature of small business debt
The Australian Small Business and Family Enterprise Ombudsman has written a newspaper article about the ‘Insolvency Practices Inquiry’ in the context of the impact of the bushfires on small to medium business enterprises [SMEs] in Australia, writing that “[t]he bleak reality is that many of these small businesses will not survive … while others will […]
Bankrupt’s continued liability for costs
A court has refused parties’ request to retrospectively make an order for costs to avoid the consequences of a time limitation in bankruptcy. An order by a court that a person pay costs is a provable debt in that person’s bankruptcy only if the order is made before the date of the bankruptcy, even if […]
Insolvency R&B law reform ideas
While the ASBFE Ombudsman, ARITA and others are looking at insolvency law reform, including for SMEs, they will no doubt consider some root and branch ideas offered by Professor Helen Anderson, in particular in her 2018 article – Insolvency – it’s all about the money.[1] Without doing justice at all to her ideas, based on […]
Insolvency data sharing and access?
A number of academics, including myself, made a submission to the Data Commissioner’s Data Sharing and Release Legislative Reforms Discussion Paper in late 2019. One aim of the work being done by the Commissioner is to modernise how the government shares its data in order to support development of good policy and programs and well […]
Winding up a company for a $1,000 debt
” … the issue of proportionality between the amount of indebtedness and the deployment of an application to wind up a debtor company is one for the creditor and liquidator. Absent the prospect of an abuse of the court’s processes, the issue of proportionality is not a relevant consideration for the court in the determination […]
An insolvency safe harbour in New Zealand?
As Australia is about the review the first two years of operation of its 2017 safe harbour reforms,[1] New Zealand is looking at introducing the same type of reforms as a means of lessening the negative impact of its own insolvent trading laws. The Companies (Safe Harbour for Insolvent Trading) Amendment Bill, is a private […]
Murrays Legal closes on 31 December 2019 and reopens on 1 January 2020
As to which, readers will be aware that “[t]he beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next …”: Prowse v McIntyre [1961] HCA 789; and “[t]hus all beginnings of days and all ends of days fall […]
Why didn’t someone do something? the obligation to whistleblow
There is a current focus on whistleblowing as being one means whereby unlawfulness can be controlled. But what can be a voluntary and sometimes difficult choice to whistleblow may in fact constitute a legal or professional obligation to do so. Whether that be formally ‘whistleblowing’, the same purpose is achieved, the reporting of unlawful conduct. […]
Disclaimer of litigation funding agreement
While a trustee was ready to continue the bankrupt’s litigation claim, he was not willing to use the bankrupt’s litigation funder with its premium of over 80% and control over the proceedings. The court allowed the trustee to disclaim the agreement. Before his bankruptcy, Mr Tonner had secured litigation funding with a funder – GT […]
Part 5.3A is not a device to escape payment, much less to protect directors from their misconduct
A deed of company arrangement (DOCA) was set aside despite 7 out of 8 creditors supporting it, and despite it offering more to creditors than a liquidation of the company. The dissenting creditor, Pilot Advisory, whose judgment debt totalled $880,000, challenged the DOCA. On the facts set out in the judgment, the Judge said it […]
The Australian Academy of Law 2019 prizewinners
The Australian Academy of Law awards annual essay and other prizes. On 7 December 2019, the essay prize of $10,000 was awarded to Dr Ellen Rock of the UTS School of Law for her essay on “Resolving Conflicts at the Interface between Public and Private Law”, the abstract of which is: “Public and private law […]
Dealing with MSE insolvency – UNCCA Australia
Earlier in December 2019, LLM candidate and graduate lawyer Samantha Pacchiarotta and final year law student Cassandra Heaslip attended Insolvency Working Group V’s 56th session in Vienna on behalf of LAWASIA and Australia’s UNCCA, the UNCITRAL Co-ordination Committee for Australia. The topic was how to deal with micros to small insolvencies. Together, they had the […]
New Zealand insolvency – accrediting the professional bodies
Public consultation in New Zealand is now open on a discussion paper on the minimum standards and standard conditions for the accreditation of professional bodies[1] to conduct what will be a co-regulatory regime over corporate insolvency practitioners.[2] It is expected that RITANZ will apply to be a recognised body, ARITA’s NZ equivalent. ‘Carrying out the […]
Equitable fraud on creditors – bankruptcy composition set aside
Among several grounds for setting aside a composition between a bankrupt and his creditors under the Bankruptcy Act was ‘equitable fraud’. It had emerged in evidence that the bankrupt, Mr Zappia, ‘had made representations to a number of creditors that if and when he rehabilitated himself he would be aiming to repay the money he […]
Small businesses and their financial difficulties – the Ombudsman’s inquiry
A discussion paper[1] issued on 20 December from the Insolvency Practices Inquiry of the Australian Small Business and Family Enterprise Ombudsman examines the financial difficulties of small business and the impact of an insolvency administration on them. Feedback is sought on what would be a ‘best practice framework’ for both small businesses moving towards insolvency […]
Boensch v Pascoe – High Court’s decision
The seven member bench of the High Court which heard Boensch v Pascoe on 11 October 2019 has unanimously dismissed Boensch’s appeal [Boensch v Pascoe [2019] HCA 49] finding that on the making of the sequestration order, the debtor’s right of indemnity in the Rydalmere property held on trust by him for his family vested […]
Halifax – no reason why the NZ High Court should not physically sit in Australia …
The on-going matter of the Halifax liquidation came before Justice Jacqueline Gleeson in the Federal Court of Australia (FCA) on 18 December 2019, and jointly, before Justice Geoffrey Venning of the High Court of New Zealand (NZHC), by video-link. The intermingled nature of the assets and liabilities of Halifax AU and Halifax NZ has prompted […]