8. December 2011 10:00
Issue 4, Volume 12 of the Insolvency Law Bulletin contains the following articles:
- The Editorial Panel wraps up 2011 with ‘Year in Review’, and ‘The Eye on Insolvency’ also focuses on the events of the year
- Paul B Lewis of the Center for International Law, The John Marshall Law School, Chicago, examines the American approach to executor contracts of intellectual property in the US
- David Richardson of HWL Ebsworth Lawyers and Anthony Lo Surdo SC of Wentworth/Selborne Chambers offer a digest of the Re Colorado Group Ltd case
- A letter to the editor broaches the subject of the ATO’s treatment of insolvent taxpayers
- David Brown of Adelaide Law School and Monika Gajic of Finlaysons give us ‘PPSA Part 2 – Key implications for leases, other “deemed security interests” and liens’
- And the PPSA Agony Aunt throws light on some knotty questions
23. September 2011 10:29
Volume 12, Issue 2 of the Insolvency Law Bulletin is now available.
- Masi Zaki and Mark Addison, of Dibbsbarker, write "Liquidator's pleadings struck out for failure to establish a proper factual basis to cause of action against directors"
- Martin Hirst of Gadens Lawyers writes "On the beat: The boot's on the other foot -can you hear me Major Tom?"
- Lee Aitken writes "No more Alsatias - the transnational enforcement of insolvency judgments"
- David Richardson of HWL Ebsworth Lawyers and Anthony Lo Surdo, Barrister, summarise the case of Re Newtronics Pty Ltd (in liq)
- Amanda Carruthers of Lewis Holdway Lawyers asks "Can penalty interest carry creditors over the threshold?"
- Dr David Goldman and Michael Rose of Norton Rose Australia write "New Zealand liquidators obtain search warrant in Australia
1. September 2011 10:59
Australian Corporation Practice service update 96 is now available.
The following chapters have been reviewed and updated:
To subscribe to the Australian Insurance Law Bulletin or other LexisNexis Products, go to lexisnexis.com.au.
- Chapter 7, Preparation and Content of the Constitution, and Chapter 8, Alteration of the Constitution by Alastair Macphee, Special Counsel, DLA Piper, Melbourne.
- Chapter 9, Share Capital, and Chapter 10, Membership and Shareholders' Rights by Jeremy Low and Caspar Conde, Allens Arthur Robinson.
- Chapter 11, Maintenance of Capital by Jeremy Low and Eve Regnard, Allens Arthur Robinson.
- Chapter 18, Managed Investment Schemes by Glenda Hanson, Special Counsel, Mallesons Stephen Jaques, Sydney.
- Chapter 23, Voluntary Administration by Ray Mainsbridge, Blake Dawson, Sydney.
10. January 2011 15:10
The Corporations Amendment (Sons of Gwalia) Act commenced on 18 December. A copy of the Act as passed is available on Comlaw.
Broadly, the amendments mean that:
1. Being a shareholder does not in itself preclude a claim for compensation in insolvency;
2. BUT payment of all subordinate claims (broadly, claims as a shareholder or that relate to dealing with shares) is postponed until ALL other claims against, and debts payable by, the company in insolvency have been paid.
3. A person whose claim against the company has been postponed is entitled to request and receive documents relating to the insolvency, and in some circumstances to vote at certain meetings regarding the conduct of the external administration (with the permission of the court).
Subscribers are referred to the extensive discussion of the Bill's terms and likely effect in Ford's Principles of Corporations Law at [24.510].
2. November 2010 14:36
In this season of annual reports, the CALDB has released its annual report for 2009/2010.
The report sets out quite clearly the basis of the Board's jurisdiction (useful to review in the context of recent criticisms), and makes specific reference to the recent Senate committee report into the insolvency industry:
It is not appropriate for the Board to take any particular stance in relation to the changes proposed by the Senate Committee, but the Board looks forward to the opportunity to participate appropriately in any future discussions concerning these matters.
19. October 2010 11:44
The 15 October 2010 issue of BCLB is now online.
We note in particular the article by Chris Kintis of crisp legal, regarding the recent Senate Economics Committee report into the insolvency industry:
The Report clearly calls for significant reform of the regulatory framework under which insolvency practitioners operate. The Committee’s highly critical tone and bi-partisan approach in support of the proposed changes suggests that the industry is likely to come under some close scrutiny, and will have to give serious consideration to the recommendations. The important question now becomes how such reforms will impact the industry in the longer term, and how the industry will react to the sweeping changes proposed.
6. October 2010 12:29
The Bill was referred to the Senate Legal and Constitutional Affairs Committee on 30 September 2010, for inquiry and report by 18 November 2010.
The Bill will effectively reverse the High Court decision in Sons of Gwalia Ltd v Margaretic.
The Committee is seeking written submissions from interested individuals and organisations, preferably online, or by email to email@example.com. Submissions are open until 27 October 2010.
The Committee has prepared some general notes regarding submissions.
6. October 2010 11:33
Volume 11, issue 2 of the Insolvency Law Bulletin is now online.
We note in particular the article by The Eye regarding the recent Senate Report into the corporate insolvency industry:
The Report’s view is that a separate insolvency regulator is required, one that is focused on the rather unique responsibilities of practitioners in conducting an insolvency administration. This would serve to free corporate insolvency from ASIC’s general regulatory approach in relation to the very different players and their conduct in the markets and securities area, which are the main focus of ASIC’s broad responsibilities.
Underlying this recommendation is the fact that many of the basic regulatory issues in both personal and corporate insolvency are the same — independence, remuneration, sale of assets, conduct of litigation, and dealing with creditors. A merger would promote common regulatory approaches, as opposed to disconnected ones; cross-fertilisation of expertise between personal and corporate, instead of the silo mentality that often exists; and, on a practical level, individuals who are both trustees and liquidators would be reviewed and regulated by the one agency.
This is the main recommendation in the Report and it is “bold and substantive”, as the Report says of all of its recommendations, and therefore involves major change. It is therefore likely to be resisted. Corporate insolvency’s connections with corporate law are seen as close and needy enough for it to remain in that fold, rather than being hived off, as it is seen, to personal insolvency — its simple cousin. That attitude from corporate insolvency may illustrate the source of its problem which has led to its laws, regulation and administration lagging behind more advanced initiatives in bankruptcy.
29. September 2010 15:04
The High Court handed down its decision in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited  HCA 31 earlier today.
The judgment of French CJ and Kiefel J contains a particularly elegant little warning against the lazy litigator's traditional fallback of pleading breach of the TPA (at ):
The cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts at all levels. Its frequent invocation, in cases to which it is applicable, reflects its simplicity relative to the torts of negligence, deceit and passing off. Its pleading, however, requires consideration of the words of the relevant statute and their judicial exposition since the cause of action first entered Australian law in 1974. It requires a clear identification of the conduct said to be misleading or deceptive. Where silence or non-disclosure is relied upon, the pleading should identify whether it is alleged of itself to be, in the circumstances of the case, misleading or deceptive conduct or whether it is an element of conduct, including other acts or omissions, said to be misleading or deceptive.
For authoritative commentary regarding statutory liability for misleading and deceptive conduct in a corporations context, subscribers are referred to [22.450] of Ford's Principles of Corporations Law.
29. September 2010 10:04
The government has announced that it intends to reintroduce the Corporations Amendment (Sons of Gwalia) Bill in the Spring sitting of Parliament.
Edited to add: this Bill was introduced into the House of Representatives on 29 September 2010. Click here to read the second reading speech.
The Bill will amend the Corporations Act to:
reverse the effects of the High Court decision in Sons of Gwalia that compensation claims for corporate misconduct made by shareholders against companies are not subordinated below the claims of creditors;
address the ability of subordinated shareholder claimants to vote and receive reports to creditors, irrespective of whether they have a financial interest in the insolvency administration; and
remove a restriction on some shareholders bringing compensation claims against companies.
For a detailed analysis of the proposed reform, subscribers can click through to [24.510] of Ford's Principles of Corporations Law.