20th Edition – National Insolvency & Reconstruction Quarterly Review

20 July 2017

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 April 2017 to 30 June 2017.

A large amount of activity has occurred in our space over the last quarter and we outline a few of those matters in this edition. In particular, our team:

  • Examines the recent decision of Re Swan Services Pty Limited (in liq) [2016] NSWSC 1724 concerning the requirement for a liquidator to account for any anticipated or estimated return to creditors in the quantification of loss and damage for the purposes of section 588M of the Corporations Act and its departure from the longstanding interpretation following the decision of the South Australian Supreme Court in Powell & Duncan (as joint liquidators of Noelex Yachts Australia Pty Ltd (in liq)) v Fryer & Perry [2001] SASC 59. Please click here
  • Reviews the recent decision of the Queensland Supreme Court in Linc Energy Ltd (in liq) v Chief Executive Dept of Environment & Heritage Protection [2017] QSC 053 that a liquidator is an ‘executive officer’ for the purposes of the Environmental Protection Act 1994 (Qld) and is therefore liable to comply with the requirements of Environmental Protection Orders. Please click here
  • Looks at the decision in ACN 092 745 330 [2017] NSWSC 241 paying particular attention to the Court’s consideration of the difference between the responsibilities of a senior manager and director of a company. Please click here
  • Considers the decision in Rambaldi v Commissioner of Taxation [2017] FCA 567 and the basis on which a Quistclose trust may be established. Please click here
  • Reviews the recent decision of the Federal Court of Australia in Kaizen Global Investments Ltd v Australia New Agribusiness & Chemical Group Ltd (in liq) [2017] FCA 43 that indicates that the Court’s discretion to extend time to register a security interest pursuant to section 588FM of the Corporations Act 2001 is not restricted only to “exceptional circumstances”. Please click here

Finally, the Treasury Laws Amendment (2017 Enterprise Incentives No 2) Bill 2017 (Bill) was presented before the Federal Parliament in the last quarter. As you will recall, the main features of the Bill were to introduce, among other things, a defence to directors against any insolvent trading claims made by liquidators as well as to prevent a party terminating and enforcing an agreement by the fact alone that it has entered into an insolvency process. There are many differences that appear in the Bill compared with what appeared in the exposure draft that we referred to in the last edition. We will outline the main features of the Bill in the next edition.

We hope you enjoy this edition.

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