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Intelligence
News
Uncategorized
21
Aug 2017
Articles

In the recent NSW Court of Appeal decision of Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113 the Court of Appeal determined that, under an amended AS4000 construction contract, the date of “practical completion” was the date the certificate of practical completion was issued by the superintendent to the contractor, as opposed… Read more »

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17
Aug 2017
Uncategorized

In the recent decision of Talacko v Bennett [2017] HCA 15, the High Court considered whether a judgment creditor of a bankrupt could apply for a certificate under section 15 Foreign Judgments Act 1991 (Cth) (FJA) with respect to a judgment against a bankrupt, for the purpose of enforcing the judgment in a foreign jurisdiction. Background The… Read more »

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10
Aug 2017
News

At the ARITA National Conference Dinner held on Wednesday, 9 August 2017 our very own Beau Weigand collected a well deserved reward for top student in the ARITA Advanced Certification course (Advanced Insolvency). All of us here at ERA Legal congratulate Beau on his achievement. To be the highest achiever nationally in his subject amongst… Read more »

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07
Aug 2017
Articles

Liquidators of corporate trustees are continually faced with the conundrum – what powers do I have to deal with trust assets? Often, the corporate trustee will have served no other function than to act as trustee and the only assets available to satisfy debts owed by the company will be those held by the company… Read more »

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07
Aug 2017
News

Contractors beware, the Electronic Transactions Legislation Amendment (Government Transactions) Bill 2017 recently received Assent by the New South Wales Parliament, the effect of which enacted the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (NSW) (the Act). The Act makes amendments to the provisions of the Building and Construction Industry (Security of Payment) Act 1999 (NSW) (SOPA) affecting… Read more »

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20
Jul 2017
News

Did you know that there is a Mediation Advisor for disputes relating to the Franchising Code? The Office of the Franchising Mediation Advisor (OFMA) was established to assist franchisors and franchisees resolve their disputes under the Code and thereby potentially avoid costly legal proceedings. The OFMA appoints mediators who can assist the parties in resolving… Read more »

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20
Jul 2017
News

Amendments to the Corporations Act 2001 (Act) which came into effect on 1 March 2017 impose on liquidators an obligation to renew their registrations with ASIC every three years, when previously the registration had no specified end date. Two liquidators were recently caught out by failing to register in accordance with the Act and had… Read more »

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20
Jul 2017
News

On 30 January 2017, the Supreme Court of Victoria introduced a new Practice Note “Guidelines for the Use of Technology”. The Practice Note covers 5 major areas: Service and correspondence. Communications with the Court. Filing (the use of e-filing). The conduct of trials. The introduction of the Practice Note comes in the wake of recent… Read more »

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19
Jun 2017
News

In a recent press release, the ATO has confirmed its officers have been continuing their work to stamp out illegal phoenix activity with a number of access visits occurring without notice during April 2017. The Phoenix Task Force, which consists of more than 20 agencies within the Federal, State and Territory governments targets illegal phoenix… Read more »

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29
May 2017
News

The Australian Financial Security Authority (AFSA) recently released its statistics for the March 2017 quarter generally recording a rise in personal insolvencies when compared with the statistics released in relation to the December 2016 quarter. In NSW, Greater Sydney saw an 11% increase in debtors whilst the rest of NSW rose only 1.9%.  As for… Read more »

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15
May 2017
News

For obvious reasons, the concealment, destruction, mutilation or falsification of a company’s books is capable of being an offence under the Corporations Act 2001 (Cth).  The Australian Securities & Investments Commission (ASIC) has reported that a director who pleaded guilty to falsifying the books of a company controlled by him has been convicted and sentenced following charges being brought… Read more »

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15
May 2017
Articles

An option is a term within a contract that gives one party (the Grantee) the option to exercise a right granted by the other party to the agreement (the Grantor). Two common examples of options are: Options in a lease giving the tenant the option to enter into a further term of the lease with the landlord. Options that… Read more »

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12
May 2017
News

The Personal Property Securities Amendment (PPS Leases) Bill 2017 was passed by Parliament on 11 May 2017 and will become the Personal Property Securities Amendment (PPS Leases) Act 2017 (the Act), which will commence operation on the day after it receives Royal Assent. It is anticipated that this will occur within the next few days…. Read more »

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01
May 2017
News

Following an investigation by the Australian Securities and Investments Commission (ASIC), the NSW DPP recently obtained a conviction against the director of a cleaning company (Company) for a breach of section 590(1)(c)(i) of the Corporations Act 2001 (Cth.). Section 590(1)(c)(i) provides, relevantly, that it is an offence where: – 590(1)  A person who, being a… Read more »

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10
Apr 2017
News

It has long been understood that a bankrupt’s potential interest in assets of a discretionary trust (arising by virtue of being one of a number, or class, of beneficiaries of the trust) is not property of the bankrupt within the meaning of section 5 of the Bankruptcy Act 1966 (Cth.). A bankrupt in these circumstances… Read more »

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10
Apr 2017
Articles

Justice Black of the NSW Supreme Court has given lawyers some commercial drafting tips as well as important guidance to insolvency practitioners about the operation of the PPS Lease provisions under the Personal Property Securities Act 2009 (Cth) (PPSA). Find out more by downloading the PPSA Tip #7 here.

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03
Apr 2017
Articles

The holders of shares in a company do not generally have an automatic right of access to the company’s books and records. However, the Corporations Act 2001 (Act) does provide shareholders the right to seek access to books of the company in certain circumstances.  If a shareholder wishes to compel the company to provide access to the… Read more »

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13
Mar 2017
Uncategorized

On 8 February 2017 the High Court of Australia delivered its judgment in the matter of Clive Frederick Palmer v Marcus William Ayres, Steven James Parbery and Michael Andrew Owen in their capacities of Liquidators of Queensland Nickel Pty Ltd (in liquidation) & Ors [2017] HCA 5 which many of you will no doubt recall… Read more »

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06
Mar 2017
News

If a party provides, as security, collateral that is serial numbered (for example, a motor vehicle) the Personal Property Securities Register (PPSR) provides the secured party the opportunity to identify that collateral by its serial number. We have previously reported on the importance of ensuring your collateral is adequately described to avoid any unintended consequences… Read more »

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27
Feb 2017
News

In the recent decision of In the matter of The Wills Group Pty Limited (in liquidation) [2016] NSWSC 1907, the Supreme Court of New South Wales ordered that the winding up of The Wills Group Pty Limited (in liquidation) (Company) be terminated in circumstances where the proceedings leading to a judgment against the Company and the… Read more »

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27
Feb 2017
Uncategorized

It is often stressed how important it is to correctly register a security interest on the Personal Property Securities Register (PPSR). The Supreme Court of New South Wales In the matter of OneSteel Manufacturing Pty Limited (administrators appointed) [2017] NSWSC 21 has again reiterated the costs of getting it wrong. Background In October 2014, OneSteel Manufacturing Pty Limited (OneSteel) entered… Read more »

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16
Feb 2017
News

The Personal Property Securities Register (PPSR) is the single national register of security interests in personal property. As set out in our article ‘Seek and you shall find: Pro Tips for an Effective PPSR Search’, there are a number of different searches you can conduct to identify ‘current’ security interests. For example, you can conduct ‘individual… Read more »

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13
Feb 2017
Uncategorized

In the recent decision of In the matter of Swan Services Pty Limited (in liquidation) [2016] NSWSC 1724 the Supreme Court of New South Wales re-affirmed the circumstances in which a company’s failure to maintain books and records will invoke a presumption of insolvency. Pursuant to section 286(1) of the Corporations Act 2001 (Cth) (the Act)… Read more »

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13
Feb 2017
Uncategorized

The law surrounding whether amounts which become payable under personal guarantees following a guarantor’s bankruptcy have been brought into question in a recent decision of the Full Court of the Supreme Court of South Australia in Oz North Food & Liquor Wholesalers (NT) Pty Limited v Gray [2017] SASCFC 1. Mr Gray was the director of Omnyx Pty… Read more »

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13
Feb 2017
News

What happens when you have a unperfected security interest and the grantor is wound up, appoints administrators or become bankrupt? The issue of perfecting your unregistered security interest by possession arose in the case of Flown Pty Ltd v Goldrange Pty Ltd [2016] WASC 419 in which a landlord was the purported secured party and a… Read more »

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30
Jan 2017
News

When registering a security interest on the Personal Property Securities Register (PPSR), a user may be given the option to enter a description of the collateral over which security interest is taken. Whilst it is necessary to enter a description of excepted property when registering a security interest over grantor’s ‘all present and after acquired… Read more »

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23
Jan 2017
News

It is the norm in New South Wales for a deposit of 10% to be paid on exchange of a contract for the sale of land. It is sometimes the case – and given rising property prices, increasingly the case – that a smaller deposit of 5% is paid. When that happens the contract often… Read more »

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23
Jan 2017
News

On 17 January 2017, the Australian Financial Security Authority (AFSA) released its data on personal insolvencies for the three months to December 2016. Whilst personal insolvencies rose overall by 0.9% when compared to the same quarter in 2015, some states showed a sharp increase whilst others actually fell dramatically.  WA led the charge with a… Read more »

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17
Jan 2017
News

Tenants should make sure they aren’t caught out having to carry out or make payment in lieu for make good and repairs of premises if the tenant has the benefit of section 133A of the Conveyancing Act 1919 (NSW), which applies to all commercial leases in New South Wales. The section operates in two ways. Firstly,… Read more »

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09
Jan 2017
News

The decision of the New South Wales Court of Appeal in Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liq) [2016] NSWCA 329 will be warmly received by liquidators. The case confirms a liquidator’s ability, in certain circumstances, to amend a claim for the recovery of unfair preference payments to include further… Read more »

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09
Jan 2017
News

On 24 November 2016, the Reserve Bank of Australia (RBA) released a Research Discussion Paper titled Why Do Companies Fail? Interestingly, the RBA found that the threat of insolvent trading (under the current insolvency law regime) may encourage company directors to seek the protection of voluntary administration rather than restructuring the company. Under the current… Read more »

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09
Jan 2017
News

Does a disclaimer signed by a beneficiary of a trust mean that the grouping provisions of the Taxation Administration Act 1996 and the Payroll Tax Act 2007 have no application for the tax years in question? In answering that question affirmatively, his Honour White J’s decision in Smeaton Grange Holdings Pty Ltd v Chief Commissioner… Read more »

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19
Dec 2016
News

ERA Legal is getting ready to celebrate another sunny Australian Christmas.   2016 was a great year for our clients and us, and 2017 is going to be even better! Our office will be closed from 5.00pm on 22 December 2016 and will reopen on 3 January 2017. Best wishes to all of our clients,… Read more »

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19
Dec 2016
News

Back in 2012 when the Personal Property Securities Act 2009 (Cth) (PPSA) came into effect, registrations from certain Commonwealth State and Territory registers  were migrated to the then new Personal Property Securities Register (PPSR).  Being a task of epic proportions, it was understandable that some registrations incorrectly migrated or were not migrated to the PPSR at all.  The  Personal… Read more »

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19
Dec 2016
News

Effective from 1 January 2017 Land and Property Information New South Wales (LPI) will charge fees for any requisitions that are raised for documents, plans and associated instruments. If you have lodged instruments, documents or plans before 31 December 2016 and a requisition is raised after 1 January 2017, then the requisition fees will not… Read more »

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16
Dec 2016
News

Beau Weigand, a Senior Associate at ERA Legal and valued member of the team, recently completed the ARITA Advanced Certification program. Not only did Beau successfully complete the course, Beau was awarded first place in New South Wales and the ACT for the Advanced Insolvency component. Congratulations to Beau – we are sure that this… Read more »

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28
Nov 2016
News

The Australian Securities and Investments Commission (ASIC) is continuing its drive to improve compliance amongst liquidators with respect to their obligations to lodge various documents with the regulator and publish notices in connection with their appointments. Recently, ASIC accepted voluntary undertakings (VU) from two Western Australian liquidators to engage an independent expert to provide compliance… Read more »

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28
Nov 2016
News

One of the most recent changes to conveyancing practice in NSW has been the introduction of priority notices in electronic conveyancing. On 1 October 2016, Part 7B Priority Notices (ss74S-74Z Part 7B) of the Real Property Act 1900 (NSW) (RPA) came into effect. At this stage priority notices are only available for electronic lodgment via the electronic conveyancing platform, PEXA… Read more »

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18
Nov 2016
News

In the case of Universal Consultants Group Pty Ltd [2016] NSWSC 1508, an order was sought that Universal Consultants Group Pty Limited (the Company) be wound up in insolvency under sections 459A and 459Q of the Corporations Act 2001 (Cth) based on an unsatisfied Creditors Statutory Demand for Payment of Debt (the Statutory Demand), founded on a… Read more »

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16
Nov 2016
Uncategorized

In the recent case of Gladstone (Trustee) v Digrigoli (No 2) [2016] FCA 1220 the Court was asked to consider the interplay between the operation of the Cross-Border Insolvency Act 2008 (Cth) and the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law). In this case, Glastone (the Trustee) was appointed as Digrigoli’s bankruptcy trustee by the… Read more »

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15
Nov 2016
Articles

In Bell Group N.V (in liquidation) v Western Australia [2016] HCA 21, the High Court held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) (the Bell Act) which dealt with the administration of the property of the Bell Companies was inconsistent with the Income Tax Assessment Act 1936… Read more »

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14
Nov 2016
News

ERA Legal are proud to support Movember by growing some of the grandest mo’s to have ever graced 45 Clarence Street. If you would like to support men’s health and our Movember team please click here. Our team features the follicles of Carl Anderson, Aaron Kam, Adam Vrahnos and Beau Weigand.

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12
Nov 2016
News

Since 2014, ASIC’s surveillance program aimed at eradicating illegal phoenix activity has been broadened to focus on the use of false statutory declarations in Australia’s building and construction sector. The concern voiced by small businesses, industry bodies, and government agencies was that officers of larger companies had falsely declared that they had paid small businesses… Read more »

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11
Nov 2016
News

The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) (the Act) comes into effect on 12 November 2016.  The purpose of the Act is to protect small business and effectively extends existing unfair contract term protections which are available under the Australian Consumer Law and Australian Securities and Investments Act 2001… Read more »

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24
Oct 2016
News

On 14 October 2016 the Australia Financial Security Authority (ASFA) released its statistics relating to personal insolvencies during the September 2016 quarter. In general, personal insolvencies have risen 1.1% during the September quarter. Specifically: Bankruptcies fell by approximately 3.5%; there was an increase in debt agreements by approximately 7.3%; and there was a further increase… Read more »

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24
Oct 2016
Articles

The rise of the internet has been disruptive to many traditions, and the humble paper contract is no exception.  Dozens of online services now permit users to upload an image of their signature to digitally sign contracts.  However, the warm feeling of complacency and technological superiority that can come with signing contracts with slick graphics and a… Read more »

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04
Oct 2016
Articles

In the recent Federal Court decision of Hussain v CSR Building Products Limited, in the matter of FPJ Group Pty Ltd (In Liq) [2016] FCA 392, his Honour Justice Edelman determined that a retention of title clause had the effect of causing a debt to be “secured” preventing the possibility of an unfair preference claim under s 588FA of… Read more »

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03
Oct 2016
Articles

In the recent decision, In the matter of Accolade Wines Australia Limited [2016] NSWSC 1023 (Accolade Wines), the Supreme Court of New South Wales has provided some comfort to secured parties who inadvertently fail to register valid security interests within the prescribed time limits. It is well accepted that pursuant to the Personal Property Securities Act… Read more »

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26
Sep 2016
News

In a recent decision of the Full Court of the Federal Court, it was determined that in bankruptcy proceedings, the Court should go behind a judgment obtained in the Supreme Court by the petitioning creditor, to determine whether there was sufficient proof of the petitioning creditor’s debt. In Compton v Ramsay Health Care Australia Ltd… Read more »

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23
Sep 2016
News

It is common for debts to be assigned by creditors for numerous reasons.  Once a debt is assigned however it does not mean the assignee can seek to enforce the debt without facing potential difficulties. Firstly, a question might arise as to whether the assignment is valid.  Some agreements or contracts specifically exclude the ability… Read more »

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21
Sep 2016
Articles

An administrator has recently paid a heavy price for the approach he (and his lawyers) took in Court proceedings. The case is an object lesson in what not to do and teaches that aggression is not always the appropriate response to a challenge. In the matter of Condor Blanco Mines Ltd (No.2) Barrett AJA dealt with… Read more »

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15
Sep 2016
News

In a tight economic market, any lending advantage can assist in solvency and business growth.  As part of the Baird Government’s recent election promise to create new jobs, there are two Jobs for NSW pilot programs available to SME, but with a very limited window to apply. Accelerating Growth Loans The first program is Accelerating… Read more »

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12
Sep 2016
News

The Australian Financial Security Authority (AFSA) recently released the Personal Property Securities Register (PPSR) statistics for the 2016 June quarter. The release confirms the continuous increase in the use of the PPSR, particularly in relation to commercial property which continues to remain the most common type of collateral. As at 30 June 2016, commercial property registrations accounted… Read more »

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05
Sep 2016
News

In the matter of GPJ Investments Pty Limited and in the matter of Angelides Investments Pty Limited [2016] NSWSC 1173, the liquidators of GPJ Investments Pty Limited (GPJ) and Angelides Investments Pty Limited (AI) made an application for the approval of their remuneration and for special leave to distribute the surplus of funds in each… Read more »

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01
Sep 2016
News

In the matter of Capital Securities No. 1 Pty Ltd v Roger Saliba [2016] NSWSC 1093, the Supreme Court of NSW considered whether parties had reached a binding agreement to settle a dispute where terms had been agreed in email correspondence but not in a formal document, such as a deed. Background During 2014 and early 2015, negotiations… Read more »

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31
Aug 2016
News

We take this opportunity to remind everyone that as and from 1 July 2016, the following duties were abolished in New South Wales: Mortgage Duty; Marketable Securities Duty; and Business Assets Duty. Mortgage Duty Mortgage duty has been abolished on and from 1 July 2016 – at last! The effect of this is that mortgages executed and… Read more »

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19
Aug 2016
News

The Supreme Court of New South Wales has recently handed down a decision as to the nature of evidence supporting service by post.  Assumptions that other people have followed office procedure in serving documents won’t fly. In In the matter of Smith & Young Pty Ltd [2016] NSWSC 1081 an application to wind up a company was reduced to… Read more »

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19
Aug 2016
News

A recent Federal Court decision highlights the importance of those receiving an assignment of a debt to properly document that assignment and to lead evidence of the assignment if a dispute as to the assignment arises in legal proceedings. Assignment of debts Creditors regularly assign their rights of debt to third parties.   This can… Read more »

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17
Aug 2016
News

Airbnb is one of Silicon Valley’s tech darlings, a so called “unicorn” (a start-up with a $1 billion plus valuation) which arranges for short term accommodation in over 57,000 cities world wide, has more than 500,000 rental bookings each night, and does all this while not owning a single piece of property.  As at 30 June 2016 it… Read more »

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12
Aug 2016
News

In news ERA Legal welcomes strongly, The Australian newspaper today reported that the ATO and ASIC have raided 13 properties in connection with a crackdown on Pre Insolvency Traders (the PITs). As a start of what ERA Legal hopes is a concerted attack by regulators on unregulated, unlicensed and often unscrupulous “advisers” who prey on directors… Read more »

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12
Aug 2016
Articles

ERA Legal has long championed the need for caution when dealing with unlicensed, unregistered and unregulated pre-insolvency advisors. Let’s call them the Pre-Insolvency Traders (the PITs).  We are troubled by the harm the PITS’s inflict, given the often unethical and unscrupulous approach many of the PITs take. We know our concerns are shared by many… Read more »

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08
Aug 2016
News

Two years ago we reported on the Federal Court decision of Paciocco v ANZ which found that late fees charged by ANZ were constituted unenforceable penalties which were “extravagant, exorbitant and unconscionable charges”.    An appeal to the full bench of the Federal Court saw that earlier decision reversed and the High Court has dashed the hopes of bank haters… Read more »

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08
Aug 2016
News

Not infrequently, directors abandon insolvent companies in circumstances where that company may owe a significant amount to its employees by way of wages and other entitlements. Ordinarily, where any insolvent company is placed into liquidation (either by the directors or perhaps on the application of a creditor) the employees become entitled to access the Fair… Read more »

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07
Aug 2016
News

In a recent press release, the ATO has asked employees of corporations to be on the look out for the tell tale signs of illegal phoenix activity and to report suspicious activity to the multi agency Phoenix Taskforce, which has been set up to identify and take action against those involved in the shady practice…. Read more »

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01
Aug 2016
News

In the recent Supreme Court of New South Wales case of Deputy Commissioner of Taxation v Fitzgerald, the Deputy Commissioner of Taxation (DCT) sought to recover an amount in respect of director penalties for which the defendant, Mr Fitzgerald, became liable due to an unpaid tax debt owed by HBO EMTB Employment Services Pty Limited (the… Read more »

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01
Aug 2016
Articles

The decision of the Supreme Court of New South Wales in Australia and New Zealand Banking Group Limited v Adventure Quest Paintball-Skirmish Pty Limited; Woollard v Hodgson; Hodgson v Wollard [2016] NSWSC 188 is recent authority relating to the circumstances in which third parties are entitled to make certain assumptions when dealing with companies.  The case deals with… Read more »

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26
Jul 2016
News

Vendors who have entered into a contract for sale of land in New South Wales on or after 1 July 2016 are now required to serve a section 47 Land Tax Clearance Certificate on the purchaser: for a contract scheduled to complete within 14 days, at exchange; or for a contract scheduled to complete in more than… Read more »

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25
Jul 2016
News

On 20 July 2016, ERA Legal made an application on behalf of the Administrators of a number of companies for an order under section 447A of the Corporations Act 2001 (Cth) (the Act)  to modify the requirements of section 439A of the Act. Pursuant to section 439A of the Act, an Administrator has an obligation to give written notice… Read more »

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22
Jul 2016
News

On 13 July 2016, The Australian Financial Security Authority (AFSA) reported an annual rise in personal insolvency for 2015-2016 financial year compared to the previous financial year. According to AFSA this is the first annual rise since the 2009-2010 financial year. AFSA reported the national personal insolvency movements as follows: bankruptcies increased by 7.0% debt agreements… Read more »

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19
Jul 2016
News

The 2016 New South Wales budget has introduced a 4% surcharge on duty payable for foreign persons or entities buying residential real estate in New South Wales. This surcharge is calculated on land tax and other purchaser duty, including stamp duty. Anyone who has entered into a transaction from 21 June 2016 for the purchase of residential real… Read more »

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14
Jul 2016
News

A recent decision in the Supreme Court of New South Wales has shed some light on the meaning of ‘regularly engaged in the business of leasing goods’ under the Personal Property Securities Act 2009 (Cth) (PPSA). In Forge  Group Power Pty Limited (in liquidation)(receivers and managers appointed) v General Electric International Inc [2016] NSWSC 52,… Read more »

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13
Jul 2016
News

Back in January 2015, we published an article which detailed the law surrounding setting aside a winding up order (as distinct from terminating a winding up).  The recent case of Sadiqi, in the matter of Cook Islands Christian Church of Australia Limited (in liq) v Cook Islands Christian Church of Australia Limited (in liq) [2016]… Read more »

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12
Jul 2016
News

Under the Personal Properties Securities Act 2009 (Cth.) (PPSA) when a default occurs under a security agreement, the secured party will ordinarily enforce its rights under the terms of the security agreement and the PPSA. Specifically, a secured party will ordinarily seek to enforce their security interest pursuant to Chapter 4 of the PPSA which deals… Read more »

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11
Jul 2016
News

ARITA recently lodged a submission in response to the Federal Government’s proposal paper “Improving Bankruptcy and Insolvency Laws“.  We provide a brief summary of ARITA’s position on some aspects of the proposed reforms. Reduction in default bankruptcy period In the submission ARITA argued that if the bankruptcy default provision is to be reduced from 3 years… Read more »

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06
Jul 2016
News

In Australia, the Privacy Act 1988 (Cth.) (Privacy Act) regulates how personal information needs to be handled if you are required to comply with the Privacy Act. The Privacy Act includes the Australian Privacy Principles (APPs) which are contained in Schedule 1 of the Privacy Act. The APPs set out 13 principles on how all… Read more »

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05
Jul 2016
News

From 1 July 2016, the NSW Land and Property Information (LPI) has introduced a new fee structure for land title related products and services. The changes include an increase in fees for most land title related products and services. The fee payable for dealings and related document services, such as for the lodgement of a caveat, will increase from… Read more »

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28
Jun 2016
Articles

The Personal Property Securities Register (PPSR) has changed the way business is done in Australia.  To a large extent, it makes identifying a security interest over personal property much easier than ever before. That said, knowing how to do the right search will truly unlock the convenience now afforded by the PPSR. In most cases,… Read more »

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27
Jun 2016
News

Business records are frequently used as evidence by litigants in proceedings however, a business record is a form of hearsay, and as such, section 59 of the Evidence Act 1995 (Cth) prohibits a business record being admitted as evidence. Section 59, known as the hearsay rule, prohibits the admission of hearsay evidence to prove the existence of a… Read more »

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20
Jun 2016
News

To ensure compliance with the provisions of the  Personal Property Securities Act 2009 (Cth.) (the PPSA), certain steps must often be taken within a specified number of ‘Business Days‘. Failure to comply can have serious ramifications, including with respect to the priority afforded to security interests. For example: Pursuant to section 62, in order to obtain… Read more »

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17
Jun 2016
News

In Australian Securities and Investments Commission v Sino Australian Oil and Gas Limited (prov liq apptd) [2016] FCA 42 (ASIC v Sino), the Federal Court considered whether the appointment of an administrator was valid under section 436A of the Corporations Act 2001 (Cth). When resolving to appoint an administrator to a company under section 436A, the company’s board must pass a… Read more »

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15
Jun 2016
News

From 1 July 2016 a purchaser of Australian land or an interest in Australian land valued at $2,000,000 or more will be required to withhold 10% of the purchase price and pay this directly to the ATO. Given the price of property in Sydney and Melbourne this is likely to impact a great many sales…. Read more »

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10
Jun 2016
News

On 8 June 2016, ASIC released its fifth annual report for 2015 into the supervision of registered liquidators in Australia. Luring readers in with a thrilling title of“ASIC regulation of registered liquidators: January to December 2015”, Report 479 summarises the work undertaken and the outcomes ASIC says it has achieved in its supervision of registered liquidators… Read more »

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08
Jun 2016
News

The Delaware Court of Chancery recently over-ruled the market in determining that the board of Dell Inc. sold the company for too little when taken over by a buyout group in 2013 despite there being no higher offer.  This could prove a dangerous precedent if adopted in Australia. The significance of the decision in In re… Read more »

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07
Jun 2016
News

ERA Legal has successfully protected the subsequent purchasers of intellectual property acquired from the administrators of a company, in proceedings undertaken in which orders were sought to have the subject sale set aside. It was argued that the sale agreement should be set aside pursuant to section 447E(1) of the Corporations Act 2001 (Cth) (the Act) or… Read more »

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06
Jun 2016
News

Directors should beware, the credit limit you nominate on a trade application does not necessarily limit what you’re liable for as the guarantor. In Crane Distribution v Yang, Crane Distribution (trading as Tradelink) (Tradelink) entered into a credit agreement with Steve Yang Construction Pty Ltd (the Company).  The director of the Company, Mr Yang, was identified… Read more »

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