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Mossgreen part 2

Breaking: the appeal to the Full Federal Court by the Administrators of Mossgreen in relation to their right to be paid for dealing with consigned goods has been dismissed. Around $1 million in fees and costs (possibly) down the drain! In summary, the Full Federal Court has confirmed that the Administrators did not enjoy an equitable…

ATO & ASIC MOU

Illegal phoenix activity is said to defraud the ATO by approximately $600 million per year and much more to the wider economy. Yesterday, ASIC and the Department of Jobs released to the public a new memorandum of understanding (“MOU”) entered into, for the purpose of combatting such illegal activity. The MOU is meant to assist…

Setting off prefo’s – not again …

Breaking: Set-off (in 553C) applies to unfair preferences, according to Justice Markovic in the Federal Court proceedings handed down today. Her Honour was minded to just follow the Re Parker case and the Smith v Bone case, which allowed set-off. Her Honour did remark that the Liquidator’s submissions did not deal substantially with this issue, because, as was found…

Solvency despite poor liquidity?

Whether a company is solvent or not is not determined by assets being greater than liabilities or even a string of profits. What is required is to look at whether the company can pay those liabilities within a reasonable time, from all of its available (and accessible) assets. But could a company be solvent, even where currently…

Does BCISPA continue to apply after a liquidation?

Façade Treatment v Brookfield Multiflex [2016] VSCA is “plainly wrong” and “should not be followed” according to Justice Stevenson in His Honour’s single-court judgment handed down yesterday. The Façade case had held that the Building and Construction Industry Security of Payment Act (“BCISPA”) does not continue to apply once the subcontractor enters Liquidation. Yesterday’s case, called Seymour…

Don’t forget to mediate!

The more we utilise the skills of accredited mediators and commercially-minded lawyers, the better returns will be for those most in need. This was the frank reminder from Rares J in the Federal Court yesterday for parties to litigation to take a realistic, commercial and principled approach to resolving disputes as early as possible. Not…

Receiver’s, think first before charging a margin on top of your consultant’s time charges

Should Receivers charge a margin on top of their consultants time when conducting Receiverships? The Federal Court has today said no; even labelling it “an error of judgment or oversight”. The case involved a very difficult and complex Receivership, spanning 30+ months and $hundreds of millions in assets. The consultant in question had been engaged for the some 3,154 hours…