A

Amerind appeal – Commonwealth v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers appointed)(in liq) [2018] VSCA 41 – trading trusts, trustees’ right of indemnity – property of the trustee, statutory scheme of priority applies on receivership of the trustee, ss 433, 556 and 560 of the Corporations Act, employee entitlements protected, question of whether the trustee’s right of indemnity requires trust assets only to be applied to pay trust debts, or whether they may also be applied to non-trust debts, Re Enhill to be applied by trial judges in Victoria pending further appeal decisions

ASIC v ActiveSuper Pty Ltd (No 2) [2013] FCA 234 – provisional liquidators – principles as to appointment

ASIC v Franklin (liquidator), in the matter of Walton Construction Pty Ltd (in liquidation) [2014] FCA 68 – application by ASIC for removal of liquidators due to an apprehension of a lack of independence and impartiality under s 503; declaration sought by ASIC that the disclosures in the DIRRI were deficient and thus the liquidators had contravened s 436DA – appeal lodged by ASIC

ASIC v Letten (No 13) [2011] FCA 1151 – receivers and pre-receivership contracts: can termination fees be recovered from receivers out of asset sale proceeds ahead of the secured creditor?

ASIC v Letten (No 14) 2011 FCA 1174 – Mirvac cops indemnity costs in favour of the Reef House Property receivers and a raft of parties

ASIC v Letten (No 15) [2011] FCA 1268 – winding up on the just and equitable ground – s 461(1)(k) – application by a public authority

“James Hardie” – ASIC v Hellicar & Ors [2012] HCA 17; Shafron v ASIC [2012] HCA 18 – directors duties – minutes of board meetings and the evidentiary value to be accorded minutes kept as official records of meetings (brief summary only)

• See also “High Court hears James Hardie appeal” – brief comment on NSWSC and NSWCA judgments and in particular on transcript of hearing of High Court appeal

In the matter of Apex Gold Pty Ltd [2013] NSWSC 881 – PPSA – ss 588FL and 588FM of the Corporations Act – extension of time for registration of security interest granted by a company

Atco Controls Pty Ltd (in liquidation) v Stewart as liquidator of Newtronics Pty Ltd (in liquidation) [2013] VSCA 132 – liquidaors’ equitable liens – the principle in Universal Distributing

Australian Building Systems Pty Ltd v Commissioner of Taxation [2014] FCA 116 – liability of liquidator’s upon disposal of company asset to retain funds to meet CGT liability – see also here under sub-heading “Tax Laws v Insolvency Laws – Another current case – COT v Australian Building Systems”

B

The Bell Group Limited (in liq) v Deputy Commissioner of Taxation [2015] FCA 1056 – post-liquidation s 260-5 garnishee notices re post-liquidation taxation liabilities – garnishee notice an “attachment” for purposes of s 468(4) of the Corporations Act – s 254(1)(h) of the ITAA36 not apply because not “attachable property” – s 254(1)(h) of the ITAA36 not override or trump s 468(4) of the Corporations Act – s 468(4) not to be read down so as to permit such an attachment – High Court’s reasoning re pre-liquidation tax liabilities in Bruton Holdings applies equally to post-liquidation tax liabilities – Commissioner had no power to issue the notices

C

Citigroup Pty Ltd v National Australia Bank Limited [2012] NSWCA 381 – fraud – restitution – mistaken payment by bank – defence of change of position

Commissioner of Taxation v Kassem and Secatore [2012] FCAFC 124 – third party preferences and the ATO’s practice of reallocation of payments

Commissioner of Taxation v Qantas Airways Ltd [2012] HCA 41 – GST law – what is a “taxable supply” – implications for liquidators and other external administrators

Commonwealth v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers appointed)(in liq) [2018] VSCA 41 (Amerind) – trading trusts, trustees’ right of indemnity – property of the trustee, statutory scheme of priority applies on receivership of the trustee, ss 433, 556 and 560 of the Corporations Act, employee entitlements protected, question of whether the trustee’s right of indemnity requires trust assets only to be applied to pay trust debts, or whether they may also be applied to non-trust debts, Re Enhill to be applied by trial judges in Victoria pending further appeal decisions

Commonwealth Bank of Australia v Anand [2011] NSWSC 613 – bank’s action to enforce a guarantee and supporting mortgages – opposed on ground that bank had failed to register the charge over the principal debtor company’s assets – whether guarantor entitled to discharge or partial release as a consequence of failure to register

Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181 – repudiation of contracts and how restraint of trade benefits may be lost post termination of a contract

D

Deputy Commissioner of Taxation v Manta’s on the Beach Pty Ltd [2012] FCA 417 – statutory demands – risks of service by post

Deputy Commissioner of Taxation v National Skin Institute (Aust) Pty Ltd [2012] FCAFC 2 – Full Federal Court rules on the Commissioner’s practice re affidavits in support of winding up applications

Deputy Commissioner of Taxation v Shi [2021] HCA 22 – worldwide freezing and ancillary disclosure orders – the courts’ discretion to compel disclosure of worldwide assets pursuant to such orders, despite accepting a claim to the privilege against self-incrimination – the proper construction of s 128A of the Evidence Act 1995 (Cth) – what matters are relevant to the exercise of the courts’ discretion under s 128A(6) – who bears the onus of establishing the matters at s 128(A(6)(a) and (b) – the discretion not available where the privilege is claimed re a tendency of the information to expose the respondent to criminal or civil penalty liability under a foreign law

E

Equuscorp Pty Ltd v Haxton [2012] HCA 7 – restitution, failure of consideration, money had and received, unjust enrichment

F

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489 – Octaviar liquidations – shelf orders under s 588FF(3) of the Corporations Act – extension of time within which a liquidator may apply for orders re voidable transactions – where transactions unable to be identified at the time of seeking the extension

G

Grant Samuel Corporate Finance Pty Ltd v Fletcher; JP Morgan Chase Bank, National Association v Fletcher [2015] HCA 8 – Octaviar liquidations – shelf orders – court rules of states and territories cannot apply so as to vary the time dictated by s 588FF(3) for the bringing of voidable transaction proceedings

In the matter of Great Southern Limited (in liq)(Receivers and Managers Appointed) – Jones, Saker, Weaver and Stewart (Liquidators) [2012] FCA 1072 – application for approval of funding agreement by liquidators – s 477(2B) – confidentiality and privilege

Great Southern Managers Australia Ltd (recrs & mgrs apptd)(in liq) v Clarke & Ors [2012] VSCA 207 – s 124 of the Evidence Act 2008 (Vic) – joint privilege – loss of joint client legal privilege

Grego v Copeland & Ors [2011] VSC 521 – “oppression” – recent example of conduct constituting shareholders oppression

Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 – de facto directors and officers – directors duties and misappropriation of funds – secret commissions / bribes –Barnes v Addy (both limbs) – equitable remedies and their flexibility – liability to account and account of profits – constructive trusts

• See also Grimaldi v Chameleon Mining – summary of facts and list of issues covered in judgment
• See also Grimaldi v Chameleon Mining – de facto directors and officers
• See also my article entitled – Barnes v Addy, Secret Commissions/Bribes, Directors’ Fiduciary Duties, Equitable Remedies – Grimaldi v Chameleon Mining NL – FCAFC
• See also More on…Grimaldi (HCA special leave refused)

Gusdote Pty Ltd (administrator appointed) v North Queensland Development Pty Ltd (in liq) (No 5) [2012] FCA 783 – application costs against liquidators personally

H

Harding Investments Pty Ltd v PMP Shareholdings Pty Ltd (No 3) [2011] FCA 1370 – shareholders oppression – date for valuation of shares

Harstedt Pty Ltd v Tomanek [2018] VSCA 84 – what qualifies as “assistance” for the purposes of a “knowing assistance” claim, under the second limb of Barnes v Addy – different forms of third party liability as an accessory for breach of fiduciary duty

HC Legal Pty Ltd v Deputy Commissioner of Taxation [2013] FCA 45 – statutory demands by the ATO – application to set aside – fact that an objection to a tax assessment has been lodged of itself not grounds to have statutory demand set aside – legislative provisions deem notices of assessment conclusive evidence that amounts and particulars correct and due

Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 – fraud – restitution – mistaken payment by financier – defence of change of position

I

Industrial Progress Corporation Pty Ltd v Wilson [2013] WASC 225 – effect on a guarantee of failure to register a security interest on the PPSR

J

“James Hardie” – ASIC v Hellicar & Ors [2012] HCA 17; Shafron v ASIC [2012] HCA 18 – directors duties – minutes of board meetings and the evidentiary value to be accorded minutes kept as official records of meetings (brief summary only)

• See also “High Court hears James Hardie appeal” – brief comment on NSWSC and NSWCA judgments and in particular on transcript of hearing of High Court appeal

Jones, Saker, Weaver and Stewart (Liquidators), In the matter of Great Southern Limited (in liq)(Receivers and Managers Appointed) [2012] FCA 1072 – application for approval of funding agreement by liquidators – s 477(2B) – confidentiality and privilege

Jones (liquidator) v Matrix Partners Pty Ltd, re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (Killarnee) – trading trusts, trustees’ right of exoneration – property of the trustee, no power to sell trust assets under s 477 as liquidator of bare trustee, no power to sell trust assets where company no longer express trustee, can acquire power to sell trust assets by court order for judicial sale, usually with appointment as receiver of trust assets, scheme of priorities applies (mostly), some elements of priority scheme may not apply in every case though employee entitlements and liquidators’ costs generally qualify, trust assets not available for distribution to non-trust creditors, In re Suco Gold correct, Re Enhill incorrect

K

Kassem and Secatore v Commissioner of Taxation [2012] FCA 152 – third party preferences and ATO reallocation of payments to different internal accounts

• See also Full Federal court appeal of August 2012, listed above (under C for Commissioner)

Killarnee – Jones (liquidator) v Matrix Partners Pty Ltd, re Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40 (Killarnee) – trading trusts, trustees’ right of exoneration – property of the trustee, no power to sell trust assets under s 477 as liquidator of bare trustee, no power to sell trust assets where company no longer express trustee, can acquire power to sell trust assets by court order for judicial sale, usually with appointment as receiver of trust assets, scheme of priorities applies (mostly), some elements of priority scheme may not apply in every case though employee entitlements and liquidators’ costs generally qualify, trust assets not available for distribution to non-trust creditors, In re Suco Gold correct, Re Enhill incorrect

Kirby v Centro Properties Limited (No 2) [2012] FCA 70 – legal professional privilege (includes a discussion of developments in the substantive Centro class action taking place at that time) **See also the revised/extended published article on this decision here.

Re Kwan; Ex parte Hastings Deering (Solomon Islands) Ltd [1987] FCA 275; (1987) 15 FCR 264 – application to set aside a bankruptcy notice arising from a guarantee liability, on the ground that the creditor would not have needed to resort to the guarantee had it not failed to register a security given by the principal debtor

L

Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation (No 3) [2018] FCA 1572 – where a payment of trust money is recovered as an unfair preference, whether it becomes trust money again, or instead forms part of the bankrupt’s general estate

Le Roi Homestyle Cookies Pty Ltd (in liquidation) v Gemmell [2013] VSC 452 – insolvent trading, public examinations and the privileges against self-incrimination for penalty or criminal proceedings