Too much independence? a re-issue of my 2016 commentary

My analysis below of the law of insolvency practitioner independence, written in October 2016, is reissued in February 2020 in light of the thesis of Dr Elizabeth Streten and her findings about ARITA Code and what she suggests is a disconnect between the law and the code.  Given the findings of Dr Streten about Australian […]

Independence of debtors’ chosen liquidators

If directors apply to the court have their company wound up in insolvency, or in fact support an application for winding up, should there be any predisposition against appointing their nominated liquidator? The decision in Avant Garde Investments[1] suggests yes. Receiver F applied under s 459A of the Corporations Act that the company be wound up […]

A deferred tax debt can remain due and payable

If a company owing a debt enters into an agreed payment arrangement with the creditor, that can serve to defer that debt as being ‘due and payable’ for the purposes of determining the company’s insolvency – that is, whether the company can pay all its debts as when they become due and payable.[1] It depends […]

Million pound fines for breach of insolvency standards

The million pound fining of an insolvency firm and its administrators by the English accounting body ICAEW illustrates the differences between the UK’s insolvency co-regulatory regime, and a similar scheme soon to be adopted in New Zealand, and that of direct regulation in Australia. Comet The fine was issued by consent in relation to the […]

A pointless distinction in corporate insolvency

In the 19th century, where much corporate insolvency law thinking still remains, a distinction was made between court ordered liquidations on the one hand, and creditors’ voluntary liquidations (CVLs), both solvent and insolvent, on the other. An accident of insolvency history, as an early edition of Ford says, though perpetuated for over 100 years. The […]

Dangers in liquidators running a ‘skinny case’

” … it might not be seen to be unreasonable [for insolvency practitioners] to avoid expending funds producing affidavits in relation to issues which might ultimately be agreed upon”. But .. All litigants and their lawyers have obligations to pursue matters economically, or, in the Federal Court, according to the ‘overarching purpose of the civil […]

All over a rooster

A bankrupt who claimed that noise attributed to her unauthorised rooster was in fact made by her peacock, which was disturbed by someone pulling feathers from a kookaburra, has been declared a vexatious litigant by the Federal Court. In earlier proceedings, a NSW court had verified the identity of a rooster on her property as […]

Liquidator disciplinary decision

A decision of a tribunal in Australia gives some insight into the insolvency practitioner discipline processes introduced in 2017, which replaced, in corporate insolvency, a more formal hearing type process. A liquidator’s registration was cancelled by a discipline committee convened under the Corporations Act 2001 which then sought to have its reasons for decision published.[1] […]

Bankrupt’s continued liability for costs

A court has refused parties’ request to retrospectively make an order for costs to avoid the consequences of a time limitation in bankruptcy. An order by a court that a person pay costs is a provable debt in that person’s bankruptcy only if the order is made before the date of the bankruptcy, even if […]

Winding up a company for a $1,000 debt

” … the issue of proportionality between the amount of indebtedness and the deployment of an application to wind up a debtor company is one for the creditor and liquidator. Absent the prospect of an abuse of the court’s processes, the issue of proportionality is not a relevant consideration for the court in the determination […]