The rules regulating the independence of insolvency practitioners serve an important purpose in the profession; to secure public confidence in the impartiality and effectiveness of the regulations and discipline of the insolvency system. The purpose of my report is to comment on the expectations imposed upon liquidators including whether the Walton Constructions Pty Limited (2014) FCAFC 85 (“the Walton case”), sets an unrealistic standard. The importance of the Walton case is for insolvency practitioners to recognise the legal principles that can be drawn from the decision. Although I am able to appreciate the ideals behind the results of the Walton case and the standard this sets, my findings indicate that the decision made by the high court …show more content…
The issues were illustrated in 2012 in the case of Haulotte Australia Pty Limited v All Areas Rentals Pty Limited whereby the liquidator was required to investigate actions undertaken by the referrer prior to liquidation, and accordingly was removed due to the inability to maintain the required appearance of independence. Further to this in the case of Lehane J observed in Wood v Targett that; “…discretion under section 503 will commonly be exercised in favour of removal of a liquidator when it appears the liquidator, through relationships and connections with the company, its management or particular persons concerned in its affairs, is in a position of actual or apparent conflict...”
The result of such cases is concerning to practitioners as relationships with referrers are seemingly commonplace, although they are often ‘understated’ in terms of importance when considering whether any conflicting interests exist. The precedents established through the abovementioned case law set standards high for
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There is a clear shift towards principles based regulation in the insolvency profession. The leading purposes of the Code is to provide broad principles that can be applied to a multitude of circumstances with the aim of averting practitioners from justifying a particular course of action via a loophole in the Act. The results of cases such as the Walton case serve as a reminder to practitioners that the Act merely provides a minimum benchmark as to the appropriate course of action and that practitioners should have regard to the requirements of the code when considering a new appointment. Interestingly, Honourable Justice Robertson made the following comment in the Walton case being that he does not regard the Insolvency Practitioners Association of Australia’s guide as extrinsic material appropriate or permitted to be taken into account in construing s 60 and 436DA of the Act. Although this is the case, the Code is still pertinent to practitioners. As stated by Miss Alicia Hill and Jessica Patrick “although the Code cannot be directly taken into account in construing legislation, it has a very important place in regulating insolvency
The appellant company (Youyang) was trustee of a discretionary trust formed in 1974 for the Hayward family. Minter Ellison Morris Fletcher’s (Minters) had been acting for EC Consolidated Capital Limited (ECCCL) since July 1991, all work in connection with the drafting of the documents relating to the subscription for preference shares in ECCCL was dealt with by Minters. As part of the subscription agreement Youyang deposited $500,000 in Minters trust account. Minters was entitled to release a section of the fund from the trust account to ECCCL for the purchase of a bearer deposit certificate to be issued by Dresdner International Financial Markets (Australia) Ltd (DAL), which could then be traded on the money market. When the certificate was obtained Minters then had the right to release the remainder of the funds to ECCCL based on the subscription agreement.
The replaceable rule in s 203C provides that, in a proprietary company, a director may be removed and another appointed at the same general meeting by resolution. In this event, there are no specific notice requirements for the removal. However, as SPG and SET are sole shareholder companies, it is necessary to use s 249B, which outlines the proceedings for resolutions of one-member companies. This section states that, when a company only has one shareholder, an ordinary resolution may be passed if the appropriate documentation is recorded and signed, and subsequently lodged with ASIC if necessary.
Relevant Law – Duties to prevent insolvent trading, Section 588G of Corporation Act, 2001, Insolvent trading prohibition and Section 180 duty of care, skill and diligence.
This essay will explain the concepts of separate personality and limited liability and their significance in company law. The principle of separate personality is defined in the Companies Act 2006(CA) ; “subscribers to the memorandum, together with such other persons as may from time to time become members of the company are a body corporate by the name contained in memorandum.” This essentially means that a company is a separate legal personality to its members and therefore can itself be sued and enter into contracts. This theory was birthed into company law through the case of Salomon v Salomon and Co LTD 1872. This case involved a company entering liquidation and the unsecured creditors not being able to claim assets to compensate them. The issue in this case was whether Mr Salomon owed the money or the company did. In the end, the House of Lords held that the company was not an agent of Mr Salomon and so the debts were that of the company thus creating the “corporate Veil” .
Next are the Options proceedings. This proceeding relates more to the transactions made by the directors for their own benefits as well for the ones associated to them. The specific parties in this proceedings are; Environinvest Ltd, James Patrick Downey the liquidator of the company, and S.T.Y. (Afforestation) Pty Ltd as the plaintiffs. Roger Neil Pescott, Caroline Pescott, Euan Pescott, Blackburne Pty Ltd, Brabourne Pty Ltd, Mt Ross Pastoral Pty Ltd, Eurambeen Pty Ltd, Maridale (Victoria) Pty Ltd, Carnac Pty Ltd, Clive Randal Dossetor and Grant Anthony Robertson as the list of defendants.
Case Comment: John Michael Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin) 2017 WL 01339062
Your managing partner has handed you the Supreme Court of Queenslands’ decision in The Public Trustee of Queensland and Anor v Meyer and Ors [2010] QSC 291 and asked you to answer the following questions. You should assume you are answering questions for someone who has not read the case, so be sure to provide sufficient detail in your answers. You do not need to provide reference details for Part A of the assignment.
This paper examines the development and scope of accessory liability under the second limb of Barnes v Addy as it stands in both England and Australia. As to the law in England, the focus will be on the rearticulation of the principle of accessory liability under the second limb as stated in Royal Brunei Airlines Sdn Bhd v Tan. In particular, it will consider the extent to which the decision has reconciled inconsistencies in earlier authority and remedied those issues propounded to be inherent in the traditional formulation of the principle. At this stage, this traditional principle remains good law in Australia. However, as suggested in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, there is potential for the
(b) R v Secretary of State for Transport, ex p Factortame Ltd (No.1) [1990] AC 85 and (No.2) [1991] 1 AC 603
Barnes, separately, had commenced proceedings in the District Court of NSW. Both proceedings were transferred to the Federal Court and heard with the proceedings issued by the ACCC. The judgment on this case was delivered on February 27, 1998 six years after Australia passed a statutory code dealing with defective goods in 1992 sixty years after the verdict on the Donoghue v Stevenson’s case.
Other facts include: the ethics surrounding the referrals, the statutory exemptions and responsible parties to be held accounted for.
Factual use or availability for use for business and private purposes method (Buckley & Young Ltd v CIR , 1978)
A Sydney tramway passenger was injured in collision with another tram, which occurred after the driver collapsed at the controls. The plaintiff argued that the collision could have been avoided if the tramway authority had fitted the tram with system known as ‘dead man’s handle’, a system in use on Sydney’s trains. This would have stopped the tram and avoided the accident. The device had been rejected by the tramway authorities because it was felt that it could cause drivers to become tired, irritated and
When providing the distinction between the above charges the two stage process of legal characterization developed in Agnew must be applied by the English courts. The object of the first stage of the process is to ascertain the nature of the rights and obligations which the parties intended to grant each other in respect of the charged assets. Once these have been ascertained, the Court can then embark on the second stage of the process, which is one of categorization and designed to attribute the correct legal label to the package of rights and obligations. Lord Millett’s reasoning has been approved by the House of Lords in Re Spectrum in which emphasis was given to the freedom of the company to deal with the assets in the ordinary course of business rather than the two first criteria focusing on the nature of the secured assets.
Before unilateral contracts come into place, contract law is about a promise for a promise. Cases such as Carlill v Carbonic Smoke Ball Co. have shown how the contract law has adapted to accommodate this form of contract. Judges seek to identify consideration and acceptance in unilateral contracts whilst managing to achieve a balance between protecting reasonable expectation of an honest man and retaining respect for the sanctity of contract.