Insolvency & Restructuring

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

Service of a document is a difficult issue at times to be 100% certain that service has been properly effected. Unless a document is personally served on a relevant individual (being the individual relevant to be served or a current appropriate officer of a company), issues may develop from posting a document to a registered office, leaving a document at a property, or otherwise.

The issue of whether a document was correctly served by post in accordance with s 109X of the Corporations Act 2001 (Cth) was raised in the case of Brown v Bluestone Property Services Pty Ltd (“Bluestone”). In this matter, the Plaintiff allegedly served a Creditor’s Statutory Demand upon the Defendant by posting the document to the registered office of the Defendant. [...]  READ MORE →

By Stephen Mullette a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

Oh, you don’t know the shape I’m in
I just spent 60 days in the jailhouse
For the crime of having no dough

— The Band, The Shape I’m In, 1970

The Insolvency Law Reform Act 2016 (Cth) (“ILRA”) has missed the opportunity to clarify an important question regarding the time limit for challenge to the conduct of trustees in bankruptcy under the Bankruptcy Act. The 60 day time limit under section 178 for reviews of a trustee’s actions has been preserved (if made harder to find) yet no clarification has been given as to whether this 60 day limit is absolute or may be extended by the Court, in particular after it has expired. [...]  READ MORE →

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

When an individual becomes a bankrupt, it is not unusual for their spouse or de facto partner, to claim they have a beneficial interest in the bankrupt’s real property, pursuant to either a resulting or constructive trust.

In Yeo & Rambaldi v Arifovic & Anor [2017] FCCA 604, the Federal Circuit Court was faced with this very issue, when the trustees of Mr Arifovic’s (“the Bankrupt”) bankrupt estate, applied for the sale of a property owned solely by the Bankrupt. The Bankrupt’s de facto partner, Ms Hocking, alleged that she held a 100% beneficial interest in the property, which she described in her caveat on the property as an interest under an “implied, resulting or constructive trust”. The trustees accepted that Ms Hocking did hold a beneficial interest in the Property on the basis of a constructive trust, however, they asserted that this interest was limited to 32.5%. [...]  READ MORE →

By Georgina King a Senior Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

The insolvency law reforms which came into effect on 1 March 2017 include a new section defining the relation-back day for the purpose of voidable transactions involving companies in liquidation and prevent an anomaly which previously resulted in the relation-back day for certain winding ups being later than it should have been.

Definition section

The new section of the Corporations Act 2001 (Cth) (Act) (section 91) created by the reforms defines “relation-back day” for the purposes of a winding up using a table listing the factual scenarios that apply to the winding up of a company, and next to each scenario whether the relation-back day will be the section 513C day under the Act, or the day on which an application for winding up of the company was filed. The definition of relation-back day previously set out in section 9 of the Act has been replaced by reference in section 9 to the meaning set out in section 91 of the Act. [...]  READ MORE →

By Georgina King a Senior Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Guidelines to promote coordination and cooperation among courts when insolvency or debt adjustment proceedings are underway in more than one jurisdiction have been formulated at a meeting attended by judges from various jurisdictions including Australia in October 2016.

The guidelines set out:

• information and rules relating to adoption and interpretation of the guidelines
• rules and methods for courts hearing parallel foreign proceedings to communicate with each other
• permission for courts to authorise parties and other appropriate persons to appear before a foreign court hearing a parallel proceeding
• consequential provisions regarding recognition and acceptance of laws, regulations, rules of court, and orders made by courts, in other jurisdictions, and amendment, modification or extension of any protocols or orders made by a court under the guidelines to the extent considered appropriate
• permission for a court to conduct hearings jointly with another court and the rules to apply or be considered for inclusion in a protocol or order in respect of the conduct of joint hearings

The guidelines state that they are best practice for dealing with parallel proceedings and that their overarching objective is to improve the efficiency and effectiveness of cross-border proceedings underway in more than one jurisdiction. The guidelines also state that they are to be implemented in each jurisdiction in such manner as the jurisdiction deems fit. Possible methods for implementation referred to in the guidelines are practice directions and commercial guides. [...]  READ MORE →

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group.

It’s human to get it wrong and fortunately the law makes allowance for legal practitioners and even Judges being human.

The Slip Rule as contained in the Federal Court Rules 2011 is contained in Rule 39.05 and states:

         The Court may vary or set aside a judgment or order after it has been entered if:

          …

          (h)    there is an error or omission arising in a judgment or order from an accidental slip or omission. [...]  READ MORE →