Insolvency & Restructuring

A recent Supreme Court decision has highlighted that the Personal Properties Security register (PPSR) is merely a “notice board”, and that registration on the PPSR is not of itself an encumbrance over property.

The facts

Auburn Shopping Village Pty Limited (“ASV”) entered into an agreement to purchase poker machine licenses from Nelmeer Hoteliers Pty Limited (“NH”). ASV maintained that it was a term of the agreement that NH would transfer the licenses free of all encumbrances. On the day of settlement ASV conducted a PPSR search of NH and found numerous entries against the company, including a Purchase Monies Security Interest (PSMI) lodged over “all present and after acquired property” of NH. ASV refused to complete the Sale Agreement and maintained it was not obliged to complete the sale while the PSMI registration was still on the PPSR. [...]  READ MORE →

By Renee Smith a Law Graduate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

In a recent decision of the Full Court of the Federal Court, Asden Developments Pty Ltd (in liq) v Dinoris [2017] FCAFC 117, the Court examined the actions of an external administrator, namely a liquidator, in relation to s180(1) of the Corporations Act 2001 (Cth) (“the Act”).

The law

Section 180 of the Act, in particular, says that a director or other officer of a corporation owes the corporation a civil obligation to exercise his/her powers and to discharge his/her duties with the degree of care and diligence which a reasonable person would exercise if that person were a director or officer of a corporation in the corporation’s circumstances, and occupied the office held by and had the same responsibilities within the corporations, the director or officer. [...]  READ MORE →

By Renee Smith a Law Graduate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

In a recent matter within the Insolvency, Restructuring and Debt Recovery group, we advised a liquidator in relation to an unfair preference claim against a creditor under s588FA of the Corporations Act 2001 (“the Act”).

In order for a transaction to be an unfair preference, it must satisfy a number of requirements under ss 588FA, 588FC and 588FE of the Act. One of those requirements is that the debt being repaid is an unsecured debt of the creditor (s588FA(1)(b). [...]  READ MORE →

By Hayley Hitch, a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

The methods and requirements of service vary from document to document and differ between legislative instruments. It is vital that at all times, the method of applicable service relevant to the document you are attempting to serve is confirmed with the relevant legislation and/or case law to ensure that the correct steps have been taken and no disadvantage/damage has been incurred by you or your client. [...]  READ MORE →

By Natalie Gosper a Solicitor of Matthews Folbigg, in our Commercial and Property Law Groups and Bonnie McMahon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

New amendments to Schedule 1 of the Taxation Administration Act 1953 (“the Act”), will amend the current foreign resident capital gains withholding payments regime, and apply to contracts transferring an interest in real property entered into on or after 1 July 2017.

What is the Foreign Resident Capital Gains Withholding Payments Regime? [...]  READ MORE →

By Jeffrey Brown, Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

A recent decision in the Supreme Court of New South Wales serves as a timely reminder that a liquidator must jump through all of the procedural hoops before he can establish that a creditor has received an unfair preference payment.

In Shaw (as liquidator of ACN 166 338 138 Pty Limited) (in Liquidation) (formerly Structural Projects Pty Ltd) v KPR Recruitment Australia Pty Limited [2017] NSWSC539 the court considered a claim by a liquidator that a creditor of the company in liquidation had, in the six months prior to the company being wound up, received a payment from the company that gave it an unfair preference over other creditors.  In such circumstances the Corporations Act provides for the liquidator to seek an order that the creditor in question repay such monies for the benefit of all unsecure creditors. [...]  READ MORE →