#SVVoidables by Matthew Hudson
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One day Liquidators will work out a solution to clawback garnishee payments made to the Australian Taxation Office pre-appointment. But s 569 is not likely one. Garnishees have long been a thorn in our sides, as it no doubt gives the ATO an unfair advantage (when they knew or ought to have known of the Company’s…
Justice Jackson from the WA Federal Court had just poured ice cold water on mothership proceedings for unfair preference claims. Despite many cases backing mothership proceedings (including SVP’s very own Bias Boating case in the NSW Supreme Court), Jackson J, in effect, says that if the plaintiff Liquidators do not take steps to validate the…
If you purchase an unfair preference claim from a liquidator of Company A (per 100-5), and the defendant you eventually sue (Company B) goes into liquidation, can the liquidator of Company B sue you for an unfair preference? I favour the view that they can’t, but it’s a grey area. Back in March 2017, the Commonwealth…
The absurdity of poor legislative drafting was on show on Thursday, as a creditor-appointed Liquidator was made to seek orders appointing himself as a court-appointed Liquidator for the purposes of setting aside voidable security agreements. Let me explain … [the case is Hayes v Spyrou] Pursuant to s588FJ Corporations Act, if a security agreement in…
A David v Goliath decision was handed down yesterday in the WA Court of Appeal concerning fundamental principles of corporate voidables law. This time Goliath has had a bit of a win. The facts are rather convoluted, but the basic gist is that payments of about $10m were paid to a parent company (which is now in…
Breaking news: in a big decision, the Liquidators of Evolvebuilt were just now unsuccessful (in part) on their appeal to clawback unfair preferences from third party payments (relying on Re Emanuel, Kassem, Supaproducts cases). This is a must read case! The third party payments arose via pressure exerted by the CFMEU on Evolvebuilt’s (“E”) head contractor ‘Built…
A trade creditor has very recently been successful in setting aside an order of a Magistrate in that certain payments received were not unfair preferences under the Corporations Act. The claim was for only about $24k. The key points that the court took from the evidence: (1) debts ranged from between 21-31 days outside trading terms, but…
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