Choosing courts in cross-border insolvency applications

As a federation, Australia has a mix of state and territory and federal courts, each with their own jurisdictions. Jurisdiction is however shared between courts in corporations matters, including those concerning the insolvency of companies under Ch 5 of the Australian Corporations Act 2001. Litigants have a choice of the Federal Court or the State […]

Cafés and restaurants – at a tipping point, in 2018, and now?

In light of current (July 2019) reports about restaurants’ tax [non] compliance, my article of a year ago, 15 July 2018, is re-issued.   The Fair Work Ombudsman’s food precincts report[1] – finding that enterprises in three selected foodie streets in Sydney and Melbourne were non-compliant in paying wages to employees, and more, to a […]

“Shortcomings of the Model Law on Cross-Border Insolvency (just some)”

Professor Martin Davies of Tulane Maritime Law Center recently offered a critique of the Model Law on Cross Border Insolvency at a presentation at Sydney University Law School. As he said: “shortcomings of the Model Law (just some)”. Limitation on recognition of foreign judgments An early problem with the Model Law on Cross-Border Insolvency was […]

Bankrupt trustees coming before the High Court

While the focus of the High Court’s trust law decision in Carter Holt[1] is in the context of corporate insolvency, many of the principles applied came from the law of bankruptcy. As the High Court pointed out, property held on trust by a bankrupt is specifically excluded as divisible property, under s 116(2) Bankruptcy Act; […]

Delayed payment of a receiver’s bill – by 400 days?

Delayed payment of bills is said to be a significant problem facing small to medium enterprises in particular, with ‘cash flow’ remaining as an essential factor in the underlying stability and success of the business. When courts are the reason for delays in respect of the approval and payment of bills of receivers and other […]

Some views on ASIC v Wily & Hurst

The views of Justice Brereton of the NSW Supreme Court have not prevailed following the decision by the High Court in the Carter Holt Harvey decision, but his findings in dismissing ASIC’s application for a court inquiry into the conduct of two liquidators going back to 2009, and for their registrations as liquidators to be […]

‘Your place or mine, and for how long?’ – a lack of judicial independence

We might have noticed that courts in Australia and indeed in most comparable countries are usually housed in their own buildings, one reason being the need to keep the administration of justice separate and independent from any commercial or government environment and arrangements – both in reality and in perception. The decisions of trial and […]

Insolvency of trading trusts – Keay comments

Our 10th edition of Keay’s Insolvency was published in 2018 just after the Victorian Court of Appeal decision in Amerind, and that decision was included in our detailed analysis of the issues involved. We explain the High Court appeal decision, with more commentary to be issued in forthcoming draft updates to Keay.  The High Court […]

Revised insolvency standard for practitioners. As to their professional bodies …

The Accounting Ethical and Professional Standards Board (APESB) has approved a new and revised APES 330 – Insolvency Services, the first revision since 2014. This standard must be complied with by accountant members of CAANZ, CPA and IPA who provide insolvency services. It covers practitioner issues of independence, remuneration, inducements and so on. It does […]

Some concession for small business bankruptcy under severe NSW law

NSW law can remove a person’s right to practice their job for up to 6 years, in the person has gone bankrupt, well beyond what is the present 3 year period of bankruptcy. A real estate agent had his licence cancelled until 2024 by the Commissioner of Fair Trading, in relation to the agent’s 2018 […]