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Transferring Proceedings to Another Court

There are a number of reasons why it might be considered desirable to move court proceedings to a different Court.  The subject matter of proceedings may make it more suitable for being heard in a specialized Court, or the location of a party to the proceedings may give rise to questions of convenience.

In the recent case of Perugini v Perugini, Mrs Perugini, who was the plaintiff in the proceedings, by way of summons sought to have the proceedings in the District Court of New South Wales removed to the Supreme Court of New South Wales. Once the proceedings were transferred to the Supreme Court of New South Wales, they were then to be transferred to the Federal Circuit and Family Court of Australia. The plaintiff and the defendant agreed to do anything reasonably necessary to bring about the transfer of proceedings. The Court subsequently granted the request and referenced an array of relevant principles regarding how the courts should assess an application for a transfer of proceedings. [...]  READ MORE →

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Dotting the I’s, and crossing the T’s – the perils of creditors statutory demands

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

The slightest slip of the pen can lead to disastrous consequences when you are dealing with creditors statutory demands, as a recent Supreme Court case demonstrates.

VO Group Australia Pty Limited (“VO”) was making an application to set aside a statutory demand that had been issued on it by Watpac Construction Pty Limited (“Watpac”).  Watpac in turn alleged that the application was made outside the 21 day time limit for making such an application and was invalid. [...]  READ MORE →

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Standing to Stay?

By Aritree Barua, Solicitor at Matthews Folbigg Lawyers

Once a company has been wound up, it can be very difficult (but by no means impossible) to undo or even temporarily halt the winding up process. Only those with proper standing may even attempt such a feat.

In Sebie v ENA Development Pty Ltd (in liquidation) (Receiver Appointed), in the matter of ENA Development Pty Ltd [2023] FCA 2, the Federal Court of Australia (“the FC”) rejected an application made by Mr Robert Sebie (“Mr Sebie”) for a stay of the winding up of ENA Development Pty Ltd (“ENA”). [...]  READ MORE →

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My Bankruptcy (That Never Was)

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

A bankrupt may apply to the Court under section 153B of the Bankruptcy Act 1966 (Cth) (“the Act”) to have the bankruptcy annulled. With some exceptions, the effect of an annulment is to place the bankrupt back in the position as if there had been no bankruptcy. Most annulments occur following a sequestration order obtained by a creditor – for instance where the debtor was simply unaware of the petitioning creditor’s debt, can pay the debt and is otherwise solvent (an expensive process but perfectly achievable with good advice). [...]  READ MORE →

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Fighting the Wolf at the Door

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

Under section 467(1) of the Corporations Act 2001 (Cth) (“the Act”) the Court has discretion in a winding up application to:

  • Dismiss the application with or without costs, even if a ground on which the Court may order a company to be wound up is proved; or
  • Adjourn the winding up application hearing conditionally or unconditionally; or
  • Make any interim order it thinks fit.

In exercising its discretion, the Court’s attention will be directed to the public interest which usually dictates, in the absence of special circumstances, that an insolvent company be wound up to prevent it from incurring further debts.

In Reform Projects Pty Ltd v Macarthur Projects Pty Ltd [2022] NSWSC 672, Parker J (“Macarthur Projects”) considered an application to have the defendant company (“Macarthur”) wound up in insolvency after it had failed to comply with a statutory demand served by the plaintiff company (“Reform”). [...]  READ MORE →

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Malass v Strathfield Municipal Council [2022] NSWLEC 1160

Summary

The Land and Environment Court of New South Wales has delivered a recent judgment considering the interpretation of the definition of ‘gross floor area’ (GFA) as set out in the Standard Instrument – Principal Local Environmental Plan.

GFA calculations are one of the more complex aspects of the NSW planning system, however, with the growing body of case law, it is becoming increasingly clear as to what will be included or excluded from this calculation. The recent decision of Dixon SC in Malass v Strathfield Municipal Council [2022] NSWLEC 1160 (Malass) has contributed to this body of case law, with the judgment clarifying the scope of item (g) in the definition of what is excluded from GFA calculation, being the space allocated to car parking and access to same. [...]  READ MORE →

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OFFER UP!

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Calderbank offers are based on the principles outlined in the English case of Calderbank v Calderbank [1975] 3 All ER 333. Whether you are the offeror or the offeree, it is important to understand the effect of these offers.

Calderbank Offer: What is it?

A Calderbank offer is designed to put the offeror in a position to apply to the court for an indemnity costs order, in circumstances when the offeror receives a better outcome than the amount that was offered. Should an indemnity costs order be granted, the unsuccessful party will pay a higher proportion of the successful party’s costs. Emphasis is placed on the word “higher”. In many civil jurisdictions (but by no means all), “costs follow the event,” and so the unsuccessful party might expect to have to pay some of the successful party’s costs. If ‘indemnity’ costs are awarded, the amount payable is higher. Somewhat  counterintuitively however, the amount is almost never “all” the successful party’s costs, for various reasons. However, in many cases the difference between recovering some costs, and recovering a much higher proportion of those costs, can make an enormous difference. And by making a Calderbank offer, a party will improve the chances of recovering a higher proportion of costs. [...]  READ MORE →

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Till Debt Do Us Part: Family Law and Corporate Insolvency

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

Under section 1337H of the Corporations Act 2001 (Cth) (“the Act”), a Court exercising Federal or State Jurisdiction can transfer a civil proceeding arising under the Act to another Court with appropriate jurisdiction where it considers that it is in the interests of justice to do so. What about where the defendant directors to an insolvent trading claim have commenced family law proceedings between themselves? [...]  READ MORE →

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Get out of (Liability) Gaol Free under section 447A

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

Section 447A of the Corporations Act 2001 (Cth) (“the Act”) enables the Court to make such orders as it thinks appropriate as to the operation of Part 5.3A of the Act. Since its introduction, the Courts have adopted an expansive construction of the provision and have liberally applied the power in a variety of contexts. Accordingly, the provision has become something of a panacea for multiple ills in the context of voluntary administration and has been used in various instances among others to: [...]  READ MORE →

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Do you want to continue litigation against a party declared bankrupt? The Federal Court of Australia provides insight in Yan v Spyrakis as trustee in bankruptcy for Liu [2022] FCA 872

By Aritree Barua, Solicitor at Matthews Folbigg Lawyers.

In Yan v Spyrakis as trustee in bankruptcy for Liu [2022] FCA 872 (“Yan v Spyrakis”), the Federal Court of Australia (“FCA”) re-stated the principles to be applied when considering whether to continue litigation against a party that has been declared bankrupt.

Background

Mr Liu (“the Bankrupt”) was made bankrupt on 11 November 2011 on his own petition. At the time of his bankruptcy, there were proceedings pending in the Supreme Court of New South Wales (“the Supreme Court proceedings”) in which the Bankrupt and a number of related companies were the defendants and Mr Yan was the plaintiff. [...]  READ MORE →

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But I thought we had an agreement!!

By Jeffrey Brown, Principal at Matthews Folbigg Lawyers

The recent judgment in the matter of Hunter Distillery Pty Ltd ([2022] NSWSC 948) is a timely reminder that, when it comes to settling litigation, finality is the key.

In this case, the parties (we’ll them Party A and Party B) had been attempting to resolve disputes arising out of a joint venture to operate a vodka, gin and schnapps distillery. There had been a number of offers and counter offers back and forth between the parties until, on 20 December 2021, an email was sent from Party A’s solicitor to Party B’s solicitor which contained the words: [...]  READ MORE →