Offence reporting in insolvency
In reporting breaches of the law to ASIC, and triggering action by ASIC, liquidators are not required to express any particular views or conclusions; or if they do so, they are not required to set out the basis for their views or conclusions, or even to have reasonable grounds for holding them before reporting. The […]
Restrictions on failed entrepreneurs – 3 years, one, or none?
The current inquiries and debates about whether we should reduce our period of bankruptcy in Australia from three years to one have revealed some lack of understanding of the rather straightforward division between personal insolvency, of an individual, and corporate insolvency, of a company, and the respective consequences of each. Here is how the law […]
Linc Energy’s insolvency disclaimer prevails over environmental demands
The success of the claims of Linc Energy’s liquidators against Queensland’s Environmental Protection Authority (EPA) won’t resolve the continuing legal and policy tension between insolvency law and environmental law. But the Queensland Court of Appeal’s decision is a step in a certain direction away from a general view that insolvency principles of equal sharing should […]
Some casual Friday comments on recent insolvency developments
This is a quick review of some on-going current issues in insolvency and related. Pending decisions The Commonwealth v Byrnes (Amerind) has now been decided, with a decision in Killarnee to follow. New Zealand The Amerind decision of the Victorian Court of Appeal will be of interest in New Zealand, where submissions close on 5 […]
One ship has berthed – the insolvency and trust law decision in Amerind
The Victorian Court of Appeal has resolved, for the moment, the complex issue of how a corporate trustee’s right of indemnity is to be dealt with upon a winding up, finding, contrary to the trial decision, that the Corporations Act and its insolvency priorities apply. See Commonwealth v Byrnes & Hewitt [2018] VSCA 41. Significantly […]
What’s bankruptcy all about?
Would you get out of bed in the morning, as an unsecured creditor of a bankrupt, for a dividend return of 0.83 cents in the dollar, or even, a bit more, 1.30 cents the dollar?[1] These are the average dividend payments to creditors in bankruptcy. What some might call a derisory 0.83 comes from bankruptcies […]
Lawless, oxymoronic insolvency law – the mining regulators aren’t happy.
This comment updates our recent commentary on the complicated intersection between insolvency law and environmental regulation. There are now at least five recent events relevant to this intersection the pending decision of the Queensland Court of Appeal in Linc Energy, being the first, then: the Supreme Court of Canada hearing in Orphan Well Association v […]
Restricting insolvency disclaimer rights in mining company failures?
The possibility of the West Australian government legislating to get around the insolvency disclaimer provisions of the Corporations Act was again raised before a Senate hearing this week; my earlier comments are here. This mirrors similar issues in Queensland – Linc Energy and the Queensland government’s reliance upon section 5G of the Corporations Act – […]
Avoid misleading cases – cite the latest court decisions
With all the numerous decisions being delivered by the higher courts, some attention is needed to ensure the latest case law is relied upon. Justice Derrington of the Federal Court recently took issue with the lawyers appearing in a matter before him because they relied upon a decision of the SA Supreme Court that had, […]
ASIC before the PJC – phoenix, DINs, AA Fund and the continuing 3 sins of liquidators
This is a very brief commentary on and extracts from evidence given by Mr James Shipton and others from ASIC before the Parliamentary Joint Committee (PJC) on Corporations and Financial Services – Oversight of the Australian Securities and Investments Commission and the Takeovers Panel, on 16 February 2018. The full transcript is available here. Phoenix […]
The tragic personal consequences of the collapse of Banksia securities
This does no more than set out the opening paragraphs of Justice Clyde Croft’s judgment of 16 February 2018 about the 2012 collapse of Banksia Securities, “owing some $660 million to investors, including many retirees in regional and rural communities in Victoria. … Any judge hearing applications of the kind presently before the Court could […]
A guide for those dealing with clients experiencing mental health and financial stress
Following some articles last year dealing with mental health issues and financial difficulties – see for example Financial failure, bankruptcy and mental ill health, and Mental health and bankruptcy, a guide has been issued by Mental Health First Aid for use by members of CAANZ, accountants being closely involved in assisting clients on financial issues. […]
Cleaning up the law – WA’s old diamond and other mines
The collapse of WA’s Ellendale diamond mine, and the liquidators’ prompt disclaimer of the mining site, leaving the clean up costs for the WA government, raises yet another difficult intersection between mining regulation and insolvency law. COAG has been enlisted to propose a national approach. At a time when unfunded environmental clean-ups after mine closures […]
Cleaning up after a failed miner – who pays: Part 2
This commentary highlights a confluence of 4 events concerning the complicated intersection between insolvency law and environmental regulation, one event being a Senate hearing on 14 February in Canberra. My previous comments on this are Cleaning up after a failed miner – who pays? 1. Linc Energy; and 2. Redwater – Orphan Wells v […]
The wider context of the proposed one-year period of bankruptcy
Many less than 1% of bankrupts warrant an objection to discharge from their bankruptcy, trustees leave it til the last moment to lodge objections, and creditors generally get back on average $100 for their unpaid debt. What is this issue all about? Is there a wider context? The proposed reduction in the period of bankruptcy […]
ASIC and one-year bankruptcy, AUSTRAC, a fees claim settled, and more …
The following further commentary on insolvency – submissions due, events and conferences and case law – may be of interest. For example, how many objections to a bankrupt’s discharge are lodged with AFSA each year? How does ASIC say it might react if the one year bankruptcy proceeds; Mr Shipton’s first appearance before a joint […]
Ensuring employees’ super gets paid
The term ‘pussyfooting’ comes to mind when looking at the government’s proposed new ‘tough’ approach to employees’ unpaid super contributions by employers.[1] Varying estimates unpaid are from $2.8m to $5.6 and more, and said to be growing annually. The various enforcement and re-education measures in the 6,600 word Treasury Laws Amendment (Taxation and Superannuation Guarantee […]
What’s up, or on, in insolvency, early in 2018?
The following commentary on submissions due, events and conferences, professional standards, international and local, hearings and case law*, all in relation to insolvency, may assist. (*and gift cards). Submissions to government Credit reporting of business tax debts Draft amendments to the Taxation Administration Act 1953 would authorise the ATO to disclose business tax debts […]
Macks v Viscariello – appeal outcome
The appeal decision in the contentious matter of Macks v Viscariello has now been delivered. It needs to be read in full to understand the outcome. As the Full Court of the Supreme Court of South Australia summarises it: Mr Macks’ (the liquidator) appeal is allowed on certain grounds, but dismissed on others. A declaration […]
Release of draft Bankruptcy Amendment (Debt Agreement Reform) Bill 2018
The debt agreements regime under the Bankruptcy Act would be substantially changed in order to give greater confidence in a system which saw an increase of 17.5% in debtors availing themselves of the regime in the September quarter 2017, compared with a paltry 0.1% increase in bankruptcies. Debt agreements in that quarter are the highest […]
Moving in together – personal and corporate insolvency law and policy
Mr Christian Porter, as the new federal Attorney-General, might like to consider transferring responsibility for personal insolvency from his law enforcement focused department, to Treasury, which already has corporate insolvency and which has the necessary economic focus to handle bankruptcy reform in the 21st century, moving it away from what was its criminal and moral […]
Cleaning up after a failed miner – who pays?
The Queensland Court of Appeal in Linc Energy, and the Supreme Court of Canada in Redwater Energy, are each determining who pays for the remediation of contaminated land after a miner or oil exploration company goes under. The Queensland appeal decision is pending, the Canadian appeal is being heard on 15 February 2018. The financial […]
Murrays Legal Commentary – closing 31 Dec-1 Jan
Murrays Legal has, since June 2016, issued over 350 commentaries on the broad topic of insolvency, personal and corporate, from legal, economic, social and technology perspectives. International reports and views from the UK, Canada and the US, China and New Zealand have been included. Over 130 local and international cases have been reported, along with […]
Revisiting the Chorley exception
While it has been said that lawyers acting for themselves have fools for a client, the law does not discourage them by what is known as the ‘Chorley exception’. There is a long-standing rule that although self-represented litigants are not entitled to professional costs in acting for themselves in court proceedings, there is an exception […]
