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Articles by Mathew Triggs
Trustee company property not subject to preferential treatment
The Supreme Court of Victoria has recently considered whether trust property is subject to the priority regime provided for in section 556 of the Corporations Act 2001 (Cth) (the Australian equivalent of New Zealand's Schedule 7 of the Companies Act 1993). It also considered whether a trustee's right of indemnity is subject to the obligations of receivers under section 433 of that Act, to pay employee entitlements in priority out of assets subject to a circulating security interest.
Distribution of assets upon the liquidation of a Ponzi scheme
Arena Capital Limited (Arena) was a Ponzi scheme. Arena's liquidators applied under s284(1)(a) of the Companies Act 1993 for directions regarding the distribution of assets under liquidation. The Court held that dividing the assets into trust assets and general assets was inefficient in the circumstances and ordered a "common pool approach." The Court ordered distribution on a pro rata, pari passu basis.
Media update June 2017
Last month the Insolvency Working Group released its second and final report, dealing with voidable transactions and Ponzi schemes. The Group's first report was released in July 2016 and dealt with regulation of insolvency practitioners and voluntary liquidations. In the second report, the Working Group make a number of recommendations on the voidable transaction regime and regarding protection from Ponzi schemes.
Insolvent gifts to trustees
In Official Assignee v Carrim the High Court considered the concept of a "gift" in the Insolvency Act 2006. The Official Assignee sought to cancel insolvent gifts made by the bankrupt to complete a property purchase by a family trust settled by the bankrupt and Ms Carrim, the bankrupt's partner (as trustees).
The insolvency waterfall and Lehman Brothers
In a comprehensive judgment arising out of the collapse of Lehman Brothers, the UK Supreme Court recently determined the ranking of creditors. Principally, the Court held that Lehman Brothers International (Europe)'s subordinated debt holders were "at the bottom of the waterfall", behind statutory interest and non-provable debt claimants.
Two halves make a whole in bankruptcy
In 2013, Mrs Hanara was adjudicated bankrupt. The Assignee subsequently disclaimed Mrs Hanara's half-interest in a Hastings property (the Interest), in which Mrs Hanara had very little equity. In 2016, the owner of the other half-share in the property, Mr Hanara, was also adjudicated bankrupt. The Assignee, acting in respect of both bankrupt estates, looked again at the likely equity that might be available in the property.
Security for costs ordered against liquidator with litigation funder
The liquidators of a group of companies related to property investor, David Henderson, have recently been ordered to pay a substantial sum for security for costs to the former directors and auditors of the group. In Walker & Ors v Forbes & Ors the plaintiffs sue the former directors and auditors of the group for alleged breaches of duties. The proceedings have been allocated a trial of 12 weeks commencing in February 2018.
Composing scheme classes
The New South Wales Court of Appeal recently handed down an important judgment relating to the composition of classes in a creditors' scheme of arrangement. In First Pacific Advisors LLC v Boart Longyear Limited, the Court of Appeal unanimously dismissed an appeal brought by First Pacific Advisors LLC (FPA).
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