NSW Registered Clubs – insolvency law change required
Registered clubs all over the country get into financial trouble, sometimes requiring the formal insolvency processes under the Corporations Act to secure their position, and potential recovery, and often urgently. Only in NSW is there a barrier to promptly accessing those processes. A recent article by Nicola Cosgrove and David Turner has repeated earlier calls […]
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 […]
ASIC’s 2018 annual report – insolvency, what to expect
An interesting aspect of ASIC’s forthcoming 2018 annual report will be its review of the operation of the changes brought in by the Insolvency Law Reform Act 2016 (ILRA), in particular those in Schedule 2 to the Act. Under s 136 of the ASIC Act, that annual report must include “information about the activities that […]
Too poor to be made bankrupt?
Most bankruptcies pay nothing to unsecured creditors. But there are only limited circumstances where a debtor can resist bankruptcy by claiming that they have nothing. Creditors that do petition the court to make a person bankrupt may often have some particular focus on assets transferred or undisclosed; but even then, that creditor has to share […]
Places of open debate or ‘echo chambers of orthodox creeds’
The need for universities to maintain and encourage open debate, particularly in matters of controversy, was recently the subject of a talk for the Academy of Law by Robert French, Australia’s former Chief Justice.[1] The topic has wider relevance, including to the professions. Austin Asche Oration, Free Speech and the Law on Campus 17.9.2018 (3) […]
Unclaimed moneys in bankruptcies – the law reformed
Those who are owed “unclaimed moneys” arising from a bankruptcy – for example a creditor whose dividend payment went astray – are assisted by recent changes to a section of the Bankruptcy Act that dates back to the 1924 Act and before. What has been a long-standing injustice is being belatedly remedied by the Bankruptcy […]
The bankruptcy of Lehman Bros – a mere coincidence
Ten years ago, on 15 September 2008, Professor Rosalind Mason of QUT Brisbane and I gave a paper at the INSOL Academics Group Meeting in Shanghai, China, entitled Issues surrounding recognition and enforcement of multistate bank and insurance company insolvencies. On that very day, Lehman Brothers entered bankruptcy, prompting a complex and long-running multistate bank […]
NZ Insolvency Practitioners Bill – RITANZ submission
The submission of RITANZ of 7 September 2018 on the proposed Insolvency Practitioners Bill presently before the NZ parliament raises a number of issues of interest to Australia’s practitioners and its insolvency laws. RITANZ RITANZ is a professional industry body with over 450 members throughout New Zealand, of which approximately 100 members have been granted […]
Ordinary course of post – now 7 days not 4
Section 160 of the Commonwealth Evidence Act 1995 has been 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 Act 2018 changes the presumed timing of delivery from the fourth to the seventh business day after posting. That is significant […]
International cross-border insolvency – an Australian diary
Some selected diary items of interest to Australian readers, and others. September 2018 QUT Law – Dr Paul Omar – Regulation of Insolvency and Insolvency Practitioners in the Asia-Pacific Region QUT is hosting an exclusive round table on insolvency systems and the regulation of insolvency practitioners from diverse economies in the Asia-Pacific Region, with […]
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 […]
