A contradictor in Mossgreen for the appeal hearing on 17 April
M: … An argument is a connected series of statements intended to establish a proposition. … Contradiction is just the automatic gainsaying of anything the other person says. O: It is NOT! M: It is! O: Not at all! M: It is![1] Contradiction and argument are generally not to be encouraged except that our adversarial […]
Insolvency conferences, talks, books, articles and court hearings
We here at Murrays Legal are notified of many things happening or coming up – conferences, talks, books, articles, and court hearings and events. Here are some. As to events, we have ARITA in far north Queensland 19-20 April INSOL International in New York 29 April-1 May UNCITRAL in New York 7-11 May, on MSME […]
Linc Energy’s insolvency, environmental and constitutional issues are off to the High Court
The filing of a High Court special leave application[1] from the decision in Linc Energy[2] concerning the rights of liquidators to disclaim environmentally damaged land seemed inevitable in light of the constitutional, environmental and economic issues raised; as to which, see my earlier comments. The High Court is a more neutral forum to deal with […]
Judicial digs
The judgments of some judges are worthwhile reading for reasons apart from their legal content. Justice John Logan of the Federal Court is one.[1] Family lawyers and its judges too specialised? The evidence in this case in relation to the application by Ms Ellison for the making and amendment of an order under s 79 […]
A liquidator’s ‘overbearing approach’ did not pay
A “ham-fisted” response by a liquidator to an application by a director to terminate the liquidation of his company, has resulted in a substantial reduction in the liquidator’s claimed remuneration. When a person is made bankrupt by a sequestration order, or a company is ordered to be liquidated, there is sometimes a flurry of […]
Modern justice – exploring beyond the edge of the known legal world
A recent article by Mr Ken Hayne has offered a strong critique of many aspects of the justice system in Australia, and the way that lawyers and judges administer it. The article covers the slow and prolix way that litigation matters proceed, the volumes of ‘relevant’ documents, the increasing length of trials, and delays in […]
Imprisoning bankrupts
AFSA as the bankruptcy regulator has reported[1] on ‘tougher’ prosecution Instructions [2] issued by the Commonwealth Director of Public Prosecutions (CDPP) for a bankrupt failing to file a statement of affairs (SOA). This is by way of prosecution under s 267B of the Bankruptcy Act, which carries a maximum one-year jail sentence. The Instructions are said […]
NOCLAR and insolvency practitioners
The NOCLAR obligations of accountants have now been highlighted in the context of the insolvency industry by way of a useful article appearing in the ARITA Journal.[1] NOCLAR – in accountants’ terminology, ‘non-compliance with laws and regulations’ – is a new obligation assumed under the International Code of Ethics of Professional Accountants – APES 110. […]
Fallout from a Trillision – a Three Ship Affair
Collisions happen. Occasionally the collision which occurs is more accurately termed an allision, where a ship has struck a stationary object. A three ship collision rarely occurs which is probably why the term “trillision” has never been coined, until now. On 30 October 2104 a trillision occurred causing the total loss of a cargo of 2,600 […]
Trust law reform – continued
As much as the issues raised in the decisions in both Amerind (Victorian Court of Appeal) and Killarnee (Federal Court) are important, and have created much legal commentary, and on-going, they leave me legally cold. I’ll leave the debates to others but my point is that law reform is needed. The law of trusts itself […]
Liquidators’ knowledge of bankruptcy law?
Do aspiring liquidators working in corporate insolvency practitioners really have an issue with the need to have some ‘exposure’ to bankruptcy in their required 4,000 hours experience? According to ASIC, and others, yes. I raised this at a recent conference,[1] prompted as I was by a practitioner querying, if not complaining, that to be […]
New NZ Insolvency Code of Professional Conduct
RITANZ, the Restructuring Insolvency and Turnaround Association of New Zealand, has released its Code of Professional Conduct for its members, described as being “the fundamental building block upon which the insolvency and restructuring profession sets and manages standards of professional conduct”. The Code will commence operation on 1 July 2018. The Code is released at a […]
Australian Insolvency Management Practice
The Australian Insolvency Management Practice of Wolters Kluwer/CCH was first published in 1985, at a time when insolvency law was under review by the Harmer Committee of the Australian Law Reform Commission and when it was developing as a discipline and a profession into a coherent whole. The Practice was a loose-leaf and on-line publication, […]
Registers of insolvency practitioners – and the alternative register
Under the changes introduced by the Insolvency Law Reform Act 2016, public registers of liquidators and trustees are established, on which disciplinary proceedings are to be recorded. Given a lack of transparency with the registers, the best source of information about those sort of proceedings is a public website, Sydney Insolvency News. Publicity of […]
Contempt of newspapers
Mr Dyson Heydon has had his useful views about political criticism of judges’ decisions published in what is known as the Murdoch press, the Australian newspaper, 21 March 2018. Given that politicians and the media speak a similar language, it may be that Heydon chose the Australian because he wanted to emphasise that even if […]
The reform of the intersection of trust and insolvency law – Killarnee
Once the trustee and insolvency lawyers have explained the law about the insolvency of trading trusts in the decision in Killarnee, [2018] FCAFC 40, there should be some attention given to the law reform comments of Justice Kathleen Farrell. Justice Farrell refers to one of the questions in the appeal as being the “subject of […]
A one year bankruptcy or a 5 year debt agreement – Senate recommendations
The reports of the Senate Legal and Constitutional Affairs Committee on the one-year bankruptcy (BAEI Bill) and the debt agreement bill (BADAR Bill)[1] have accepted the reduction in the period of bankruptcy to one year, subject to a curious recommendation based on the views of ASIC. That recommendation is to amend the Corporations Act “to […]
UK consultation on insolvency recovery and governance reforms
The UK government is consulting on law reform with a view to, in its words, “to improve the UK’s corporate governance framework to ensure the UK remains one of the best places to start and grow a business”, and perhaps to end one. Its insolvency regime “is another important part of the UK’s business environment and […]
The breadth of the concept of justice – Australian Academy of Law
Consistent with its objects, the Australian Academy of Law held a series of three public debates in 2017, in Sydney, based on the theme of ethics in law and business. They proved to be very popular, each one drawing large audiences, with many audience questions directed to the eminent panels leading the debates. The Academy […]
Release from bankruptcy of a deaf person
A deaf person, with some mental impairment, who was bankrupt was successful in having an objection to his discharge from bankruptcy cancelled. The objection was based on the ground that he had intentionally failed to disclose to the trustee his interest in a house, where he lived, left to him by his late mother in […]
Mining company rehabilitation costs as contingent liabilities – Senate hearing
The question of how to account for outstanding rehabilitation costs of mining ventures was again before the Senate Environment and Communications References Committee on 7 March 2018, in Perth WA. The submission of Environment Victoria explained the issue well. “Outstanding rehabilitation costs are currently financially reported as contingent liabilities, and are mostly disclosed in footnotes […]
Does Political Criticism of Judges Damage Judicial Independence?* a paper by Dyson Heydon
This is the title of a recent article written by Dyson Heydon AC QC on contempt of court, with a particular focus on the validity of the response of the judges of the Victorian Court of Appeal to criticism made of the Court’s decisions in 2017 by three government ministers. That Court of Appeal response[1] […]
The Federal Court and the Constitution – public lecture, 15 March, Canberra
A free public lecture on the Federal Court and the Constitution is being given at the ANU on this Thursday 15 March from 5.30 to 6.30pm. The presenter is Professor James Stellios, with commentary by Professor William Gummow AC. As the flyer explains, at its inception, the role of the Federal Court in the development […]
Traill’s 17th Annual Practical Insolvency Conference – a preview
Courts and governments and industry bodies are no doubt trying to have their remaining pending decisions and announcements out in time to be included in the already packed program of the Traill Insolvency Conference on 19-20 March. Some have succeeded – Amerind, Linc Energy, safe harbour, and the one -year bankruptcy; but for others still […]
