An employee or an independent contractor? a checklist

The AAT has given a useful decision, finely balanced on the facts and the law, that a person – Mr Roberts – was an employee of a company and not an independent contractor. The decision was given in the context of the Department of Employment finding that Roberts was an independent contractor of Ignite Homes […]

Liquidator’s right to disclaim contaminated land – important decision pending

Murrays Legal has reported for some time on the progress of an important issue of legal conflict before the Supreme Court of Canada between a liquidator’s right to disclaim contaminated land and an environmental regulator’s claim to recoup remediation costs from the insolvent company’s assets. The Supreme Court has announced that judgment is to be […]

Does insolvency practice constitute a profession?

Those who specialise in insolvency law and practice, and restructuring, would no doubt consider they act professionally, however that term may be defined. But in the wider context of all the recognised professions, and the criteria that they meet, there is some doubt that they constitute a profession. At least this is a threshold issue […]

Inquiry into debt services for those in financial hardship – 22 January hearing

The Senate Standing Committee on Economics inquiring into credit and financial services targeted at people at risk of financial hardship has its next hearing in Brisbane on Tuesday 22 January 2019. There is a wide mix of views from those attending: Dr Paul Harrison, Senior Lecturer, Marketing and Consumer Behaviour, Deakin University; Afterpay; Zip Co […]

A new priority of the Commonwealth in an insolvency?

The move generally in insolvency law, and under Australia’s Insolvency Law Reform Act 2016 (ILRA), has been to give creditors greater ‘say’ in an insolvency, including by having a statutory right to request information, subject to restrictions in respect of irrelevant, vexatious or other such requests. This right of creditors is provided for in section […]

The costs of lawyer litigants – ‘Chorley’ off to the High Court

Some important cases in legal history have involved small amounts of money, in particular where the matter is pursued as one of principle. Lawyers will know of the disputed ferry fare of one penny, in Balmain New Ferry Co v Robertson,[1] involving as it did the more important issue of false imprisonment. The High Court […]

Opportunistic and manipulative insolvency practitioners?

Insolvency practitioners’ (IP) remuneration for the work performed in administering an insolvent estate attracts public attention, much of which is too narrowly focused to provide a fair analysis of the issues involved. A thoughtful article has just been published in the UK, by Dr John Wood of Lancashire Law School, on which I offer these […]

Professional body regulation of Australian insolvency practitioners

Having reviewed the current regulation of insolvency practitioners (IPs) by both ASIC and AFSA, ARITA is now examined, and to a limited extent CAANZ, given it and ARITA represent two of the 14 ‘industry bodies’, among others, that the legislature has designated to regulate IPs in Australia.[1]   The 1 March 2017 impact of the […]

Insolvency Practitioners Regulation Act (NZ) 2019?

A New Zealand government committee has recommended the passage of the long awaited Insolvency Practitioners Bill with some few amendments, taking into account comments in Supplementary Order Paper No 45. See this link of 20 December 2018. A new Insolvency Practitioners Regulation Act The Bill aims to strengthen the regulation of insolvency practitioners by introducing […]

Bankruptcy trustees’ performance 2017-2018

AFSA’s Personal Insolvency Compliance Report 2017-2018 may be rather welcome in its positive reporting of its findings in relation to its regulation of trustees in bankruptcy under the Bankruptcy Act, including the Official Trustee.  The report may be read here. Some queries The AFSA Report gives a different picture than the equivalent ASIC report for […]

More soft law – ARITA’s insolvency practice statements

ARITA has released a number of draft Practice Statements for comment.  These Practice Statements are designed to give ‘technical’ guidance on best practice approaches to particular task areas. Much of their content is extracted from the existing 2014 Code, and not included in the new draft 4th edition of the Code.  The Practice Statements are […]

Model Law on Cross-Border Insolvency – its procedural limitations

The Model Law on Cross-Border Insolvency is not quite as expansive in its assistance to foreign liquidators and trustees as it may appear.  It did not assist Mr King, the US bankruptcy trustee of Zetta Jet, incorporated in Singapore, in trying to recover a luxury yacht named the Dragon Pearl, moored in Australia, and claimed […]

Revised draft of Australia’s 2014 insolvency code of practice

ARITA has released a consultation draft of its Code of Professional Practice for Insolvency Practitioners. This will be the 4th edition, it being over 10 years since the 1st edition appeared in 2008. ARITA asks for comments by 18 February 2019, with a view to the new version of the Code starting on 1 July […]

What bankruptcy law changed in Australia in 2018, and what didn’t

In the last days of parliament for 2018, the government has managed to stave off debate on the proposed one-year bankruptcy law – the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 – leaving the new debt agreement laws to proceed alone, in June 2019. As we earlier reported, there has been a rather strong debate concerning […]

Managing government contracts through financial distress – AGS Commercial Notes, November 2018

This Australian Government Solicitor bulletin offers a comprehensive coverage of the terms of commercial agreements with the Australian government and how government clients and their lawyers should safeguard against the risks of the counter party facing financial distress or collapse.  Apart from discussing a range of contract terms, including the taking of security, the guidance […]

UNCITRAL – insolvency working group Vienna – 10-14 December 2018

A small group from Australia is in Vienna this week to attend the regular meeting of UNCITRAL Working Group V (Insolvency).[1] WGV is currently examining three main issues: proposed model laws or guidelines on the cross-border insolvency of enterprise groups; the obligations of directors of enterprise group companies in the period approaching insolvency; and guidelines […]

Environmental law and insolvency – Senate inquiry moves into 2019

The on-going tension between insolvency law and Commonwealth environmental law is being played out for one, in the Senate Environment and Communications References Committee, convened in February 2017, which has now had its reporting date extended to early 2019. It has taken extensive evidence around the country. In the meantime, the states have been proceeding […]

What to do about problem debt advisers?

A late submission received by the Senate Economics Committee inquiry into credit and financial services aimed at those at risk of financial hardship – ‘debt management firms’ may contain some solution to the regulation of what some call ‘untrustworthy advisers’, in particular those who purport to advise debtors on how to avoid the consequences of […]

Trial decisions pending a High Court appeal in Amerind

It can be legally difficult to determine what the law is when a significant legal issue is on appeal, leaving the issue uncertain in other matters where the issue arises until the appeal is heard and resolved. That is the case in relation to the insolvency of trading trustee companies, with decisions from the Victorian […]

A regulator ‘getting tough’

This broadcast – Getting tough on untrustworthy advisors – in fact comes from the bankruptcy regulator, AFSA, about what it says are ‘untrustworthy [debt] advisers’, the subject, among others, of a current Senate Committee inquiry on which AFSA and others have made submissions. AFSA refers to untrustworthy, unscrupulous, unregulated and unlicensed advisers who give false […]

New draft version of APES 330 – Insolvency Services

APESB has issued a long-awaited revision of its insolvency code – APES 330 Insolvency Services – with a view to it replacing the 2014 version at a point in time – July 2019 – that will be over 2 years since the changes introduced by the ILRA commenced and after many changes in practice and […]

Liquidators – spending money to justify spending money

Charging a second fee to justify charging an initial fee might seem odd but this can be the case when the law itself requires some formal approval process for the initial expenditure. A recent court decision involved fees of over $7000+ being incurred to justify fees of around $34,000. Insolvency practitioners (IPs) must have their […]

ATO indemnities to insolvency practitioners***

“New requirements for indemnity offers from the ATO to insolvency practitioners*** All indemnity offers from the ATO to insolvency practitioners must comply with a minimum standard in order to be considered. This is due to legal and policy obligations imposed on insolvency practitioners in relation to the proper conduct of the administration for all creditors. […]