Insolvency
Anscorp Pty Ltd v GRS Nominees Pty Ltd [1994] FCA 963; BC9405668
Insolvency – Corporations Law - statutory demand - application to set aside demand - form of demand - substantial compliance with statutory form - application filed and served out of time - whether Court has power to extend time for making application - Corporations Law, ss 1094, 1095, 1322, Chapter 5, Pat 5.4, (ss 459 - 459 T) - Corporations Regulations, r 104, Form 509H
Avram Investments Pty Ltd, Re (1992) 8 ACSR 574; (1992) 10 ACLC 1583; [1992] FCA 467
Insolvency - Scheme of arrangement — Winding up — Resolution of question whether company should be wound up or whether order for meeting of creditors Consideration of relevant matters — Public policy and commercial morality considerations — Use of tax losses — Corporations Law ss 411(1), (2), 412
Avram Investments Pty Ltd (No 2), Re (1992) 10 ACLC 1747; [1992] FCA 538
Insolvency – scheme of arrangement – - classes of creditors - financial benefits of scheme compared with winding up - discounting of creditors' votes - s.411 – applicable considerations
Avram Investments Pty Ltd, Re (1992) 11 ACLC 224; (1992) 24 ATR 553
Insolvency - Recovery - Appeal against order for winding up - Scheme of arrangement in place - Relevant matters in exercise of court’s discretion.
BM2008 Pty Ltd (in liq); Re [2010] VSC 337
Insolvency – Transfer of shares after resolution for the voluntary winding up of a company – Request for liquidator’s consent to transfer – Liquidator gives conditional consent – Application to set aside condition of consent to transfer – Court’s power to set aside condition where the condition is “not in the best interest of the company’s creditors as a whole” – Corporations Act 2001 (Cth) s 493A – Member’s voluntary winding up – Declaration of solvency – Surplus of assets available for distribution after payment of debts in full – Whether a shareholder who is entitled to share in the surplus rateably is a “creditor” of the company for the purposes of section 493A – Corporations Act 2001(Cth), ss 493A, 501, 553A, 563A - Words and Phrases – Meaning of “creditors” in s 493A of the Corporations Act 2001
Brashs Limited, Re (1994) 15 ACSR 477; (1995) 13 ACLC 110; BC9406167
Insolvency - Deed of company arrangement - Application for court order that company not required to have words “subject to deed of company arrangement” after its name in public documents - Whether discretion of court to grant order under s 447A should be exercised.
Central Spring Works Australia Pty Ltd, Re: Tubemakers of Australia Ltd v McLellan (as Administrator) (2000) 34 ACSR 169; [2000] VSC 145; BC200002311
Insolvency - Removal of administrators - Whether reasonable apprehension of lack of independence of administrators such that they should be removed – Corporations Law s.447A, 448C
D'Aloia (as administrator of Smarter Way (Aust) Pty Ltd) v Jarvie (2000) 18 ACLC 289; [2000] VSC 16; BC200000630
Insolvency - Appointment of administrator - Appointment pursuant to charge - Whether applicants duly appointed as administrators pursuant to charge under s 436C(1) Corporations Law - Whether applicants established existence of charge within meaning of s 436C(1) Corporations Law
Deputy Commissioner of Taxation v Avram Investments Pty Ltd (1992) 9 ACSR 580; (1993) 11 ACLC 224; (1992) 24 ATR 553
Insolvency – winding up – scheme of arrangement in place – court’s discretion to refuse DCT application – balance between prima facie entitlement of petitioning creditor for winding up and supporting creditors for scheme of arrangement – interests of majority of creditors to be favoured – irrelevance of tax losses
Egankarra Pty Ltd v Vince (1990) 2 ACSR 463; [1990] VSC 163; BC9000846
Insolvency - Liquidators – costs – application against liquidator personally – meaning of ‘creditor’ – discretion of court to make order – Companies Code ss 377(5), 420(1)(b)
GF & GM Balsillie Pty Ltd v GF & GM Balsillie Pty Ltd [2001] FCA 1872; BC200108169
Insolvency - administration - meeting of creditors irregularly convened - meeting of creditors irregularly adjourned - termination of administration - order made to regularise - Corporations Act 2001 (Cth) ss 435C, 436E, 437A, 439A, 443A, 443D, 443F, 447A, 471B
Iliopoulos v BM2008 Pty Ltd (in liq) [2010] HCATrans 326
Insolvency – High Court – Special leave application - does a shareholder, or a person capable of being a shareholder, lose the right to bring a derivative action under Part 2F.1A of the Corporations Act once a company is placed in liquidation, or should that be considered to be the ordinary rule, subject to exceptional and appropriate cases? - an unsuitable vehicle for the grant of special leave
Interbanca Pty Ltd, Re [1990] VSC 22; BC9000925
Insolvency - Winding up application – opposed – whether a bona fide dispute – relevant principles – threshold – profit and loss test and review of assets against liabilities
Java 452 Pty Ltd (Administrators Appointed) (No.2), Re [1999] VSC 273; BC9905371
Insolvency - Voluntary administration under Pt 5.3A Corporations Law - Taking possession of leased property - Whether to grant leave under s 440C Corporations Law to take possession of leased premises.
Java 452 Pty Ltd (Administrators Appointed), Re; ex parte Permanent Trustee Australia Limited v Stout (1999) 32 ACSR 507; [2000] ANZConvR 555; (1999) VConvR 54-606; [1999] VSC 252; BC9904116; [(2000) 8 InsolvLJ 43]
Insolvency – Administration – Property – Lease determined after beginning of administration – Whether s 440C application equivalent to re-entry – whether leave to take possession should be granted – Corporations Law ss 440C, 441F, 444F(4). Landlord and Tenant – Lease – Termination of lease – re-entry – whether s 440C application equivalent of re-entry – Re-entry by demand for possession – Corporations Law s 440C – Property Law Act 1958 s 146
Konica Australia Pty Ltd v Aprolab Flashpoint (Australia) Pty Ltd (DCA) (1999) 17 ACLC 1651; [1999] VSC 257; BC9904418
Insolvency - Arrangements and reconstructions - Deed of company arrangement - Prejudice - Notion of motion by creditor of company seeking to set aside resolution passed at meeting of creditors of company and seeking consequential relief pursuant to s 600A(2) Corporations Law - Whether passing of resolution contrary to interests of creditors as whole.
Lin Creations Pty Ltd; Lin Creations Pty Ltd v Morton, Re [1999] VSC 490; BC9908234
Insolvency - Administration - Fraudulent charge - Whether court should interfere in administration of company
Marlan Financial Services Pty Ltd, Re; Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd (1999) 33 ACSR 259; [1999] VSC 435; BC9907709
Insolvency - Application to set aside statutory demand - Whether effective service of notice of motion and supporting affidavit - Appeal against Master’s decision dismissing appellant’s motion to set aside statutory demand on basis of appellant’s failure to comply with provisions of Service and Execution Process Act 1992 (Cth) (SEPA).
Object Design Inc v Object Design Australia Pty Ltd (1997) 78 FCR 60; (1997) 24 ACSR 678; (1997) 15 ACLC 1356; [1997] FCA 917; BC9704183
Insolvency - Whether administrator able to be appointed to company to which provisional liquidator appointed.
Perth Freight Lines Pty Ltd v BM2008 Pty Ltd (in liq) [2011] VSCA 62
Insolvency – Statutory demand – Application to set aside – Whether ‘offsetting claim’ – Whether ‘some other reason’ – ‘Offsetting claim’ arising from alleged entitlement to proportionate share of distributable surplus of creditor company upon completion of voluntary winding up – Alleged entitlement said to arise from transfer of equitable interest in shares of creditor company – No transfer of equitable interest in shares where transfer void by operation of s 493A(1) of the Corporations Act 2001 (Cth) – Decision below not shown to be attended with any doubt – Corporations Act 2001 (Cth) ss 459G, 459H, 459J, 493A.
Rodgers v CJS Panels Pty Ltd [2001] VSC 470; BC200108008
Insolvency - appeal against winding up order - standing to bring appeal. Corporations Act 2001 - ss.471A, 482 - Costs - application hopeless and high-handed - costs sought against both solicitor and client - indemnity costs against client.
SpaCorp Australia Pty Ltd v Myer Stores Ltd (2001) 19 ACLC 1270; [2001] VSCA 89; BC200103084
Insolvency - Statutory demand - Genuine dispute - Appeal against decision of trial judge refusing application to set aside statutory demand - Advance to company setting up business in department store - Construction of agreement - Whether moneys owing on termination of agreement - Whether genuine dispute as to existence or extent of debt.
SpaCorp Australia Pty Ltd v Myer Stores Ltd (No 2) [2000] VSC 484; BC200007178
Insolvency - dispute between parties resulting in defendant serving statutory demand on plaintiff claiming entitlement to repayment of monies provided to plaintiff - Plaintiff disputed defendant’s entitlement to repayment - Master set aside statutory demand - Whether genuine dispute about debt existed.
SpaCorp Australia Pty Ltd v Myer Stores Ltd [2000] VSC 469; BC200006748
Insolvency - Corporations Law, ss.459E, 459G and 459H - setting aside statutory demand - construction of agreement - whether monies owed - arguable case.
Stout & Scales v Permanent Trustee Australia Limited [1999] VSCA 168; BC9906563
Insolvency - Administration - Execution of deed of company arrangement - Discretion to extend time - Application for extension of time to appeal against refusal of restraining order, and for extension of time for execution of deed of company arrangement - Whether execution of deed of company arrangement subject to time limits of Corporations Law.
Thirteenth Corp Pty Ltd v State & ors (2004) 50 ACSR 425; [2004] VSC 320; BC200405683
Insolvency - insolvent trading - creditor's claim - application to summarily dismiss proceeding - whether creditor had arguable case that its debt was wholly or partly unsecured - Practice and Procedure - application for security for costs - delay - nature of case - circumstances justifying order
VFS Group Pty Ltd; Re (& Re Perth Freightlines Pty Ltd) [2010] VSC 396 (appealed)
Insolvency – Application to set aside statutory demand – Offsetting claim – Order by Associate Judge varying the statutory demand and extending time for compliance with the demand for a period of 3 weeks – Appeal against orders – Time for compliance with the demand expired before appeal due to be heard – Orders not authenticated – Orders recalled by the Associate Judge - Associate Judge made a new order extending time for compliance with the demand to a date after the appeal was to be heard – Whether the Associate Judge had the power to extend the time for compliance after the period for compliance had expired – Whether new order the “last order” for the purposes of s 459F(2)(a)(i) of Corporations Act 2001 (Cth) – Whether new order “finally determined” the application to set aside the statutory demand for the purposes of s 459F(2)(a)(ii) of Corporations Act 2001 (Cth) – Associate Judge had no power to make the new order – Supreme Court (General Civil Procedure) Rules r 59.02 – Corporations Act 2001 (Cth) ss 459C, 459F, 459G, 459J.
VFS Group Pty Ltd v BM2008 Pty Ltd [2010] VSCA 277
Insolvency - statutory demand – setting aside – Orders by Associate Judge varying statutory demand and extending time for compliance with the demand by 3 weeks – appeal against orders – Time for compliance with the demand expired before appeal due to be heard – Orders not authenticated – Orders recalled by Associate Judge – New orders made extending time for compliance with the demand to a date after the appeal was to be heard – Whether Associate Judge acted within power in extending time for compliance – Whether erroneous assumption made b Associate Judge as to legal consequences of first set of orders – Inherent jurisdiction of Court to recall and replace orders – Supreme Court (General Civil Procedure) Rules 2005, rr 36.07, 59.02(1), 60.01(1), 77.01(1), 77.06(8) – Corporations Act 2001 (Cth) ss 459F(2), 459G, 459J.
VFS Group Pty Ltd v BM2008 Pty Ltd (no 2) [2010] VSC 593
Insolvency – Application to set aside a statutory demand –– Whether offsetting claim – Whether “some other reason” - Alleged cross-claim arising by virtue of an entitlement to share in a distribution of company surplus upon completion of a voluntary winding up – Entitlement accruing under a transfer of shares - Whether transfer of shares void under s 493A of the Corporations Act 2001 (Cth) – Whether equitable interest in distributable surplus– Assets of company said to include causes of action against former directors and related company – Corporations Act 2001 (Cth) ss 459G, 459J, 493A – Supreme Court (Corporations) Rules 2003 r 16.5(1) – Supreme Court (General Civil Procedure) Rules 2005 r 77.06(7) – Corporations Regulations 2001 (Cth) 5.6.70
Willmott Forests Ltd [2012] VSC 29
Insolvency – Liquidation – Disclaimer of Onerous Property – Where the plaintiff is in liquidation – Where the plaintiff acts as the responsible entity and manager of registered and unregistered managed investment schemes operated on freehold land and land leased by the plaintiffs to the members of the schemes – Liquidator of the plaintiff wants to sell the freehold unencumbered by the leases – Whether the liquidators disclaimer of the leases would have the effect of extinguishing the Growers’ leasehold estate or interest in the subject land – Corporations Act 2001 (Cth) ss 477, 511, 568
Willmott Forests Ltd (No 2) [2012] VSC 125
Insolvency – Managed Investment Schemes – Winding up - Application under section 511 of the corporations act for judicial advice - Where the company in liquidation is the responsible entity and manager of registered and unregistered managed investment schemes Where the schemes are forestry operations conducted on land which is either freehold land owned by the company or leasehold land that the company leases to the members of the schemes Where the liquidators are realising the assets of WFL in the course of winding up the company - Where the liquidators have entered into sale contracts for the land with the trees grown on the land which are the property of the members of the schemes where the contracts are conditional upon the giving of clear title to the land unencumbered by the rights of the members of the scheme, including their rights with respect to the trees application by the liquidators under s 511 of the Corporations Act 2001 (Cth) for approval for entering into and completing the contracts Whether the liquidators acted properly and reasonably in conducting the sale process Whether the liquidators are justified in terminating and disclaiming the agreements that govern the schemes conducted on the land to be sold Where the sale contracts provide for the allocation of the sale proceeds between the liquidators and receivers appointed over the land to be sold Whether the liquidators are justified in allocating the sale proceeds in the manner proposed between themselves and the receivers based on the value of the land to be sold (excluding the trees) Whether the liquidators are justified in allocating the sale proceeds amongst the growers based on the value of the trees sold with the land on a scheme-by-scheme basis in the manner proposed - Corporations Act 2001 (Cth) s 511
Jurisdiction And Powers Of Court Under Section 511 of the Corporations Act - Where substantive rights of third parties affected by the orders and directions sought under s 511 Whether the Court has the power under s 511 of the Corporations Act to determine third party rights Whether the third parties must be joined as parties to the proceeding Factors relevant to the exercise of power to give judicial advice under s 511 Whether the determination of the questions in the winding up of WFL will be just and beneficial Corporations Act 2001 (Cth) ss 479(3), 511(1),(2) Trustee Act 1925 (NSW) s 63 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 16.01
Managed Investment Schemes - Whether any of the land owned by or leased by WFL that was used by the schemes is scheme property Whether the land is held on trust by WFL for the Growers in any of the schemes Corporations Act 2001 (Cth) ss 601FC, 601FC(2), 601EB, 601EE
Words And Phrases - Scheme property, managed investment scheme
Anscorp Pty Ltd v GRS Nominees Pty Ltd [1994] FCA 963; BC9405668
Insolvency – Corporations Law - statutory demand - application to set aside demand - form of demand - substantial compliance with statutory form - application filed and served out of time - whether Court has power to extend time for making application - Corporations Law, ss 1094, 1095, 1322, Chapter 5, Pat 5.4, (ss 459 - 459 T) - Corporations Regulations, r 104, Form 509H
Avram Investments Pty Ltd, Re (1992) 8 ACSR 574; (1992) 10 ACLC 1583; [1992] FCA 467
Insolvency - Scheme of arrangement — Winding up — Resolution of question whether company should be wound up or whether order for meeting of creditors Consideration of relevant matters — Public policy and commercial morality considerations — Use of tax losses — Corporations Law ss 411(1), (2), 412
Avram Investments Pty Ltd (No 2), Re (1992) 10 ACLC 1747; [1992] FCA 538
Insolvency – scheme of arrangement – - classes of creditors - financial benefits of scheme compared with winding up - discounting of creditors' votes - s.411 – applicable considerations
Avram Investments Pty Ltd, Re (1992) 11 ACLC 224; (1992) 24 ATR 553
Insolvency - Recovery - Appeal against order for winding up - Scheme of arrangement in place - Relevant matters in exercise of court’s discretion.
BM2008 Pty Ltd (in liq); Re [2010] VSC 337
Insolvency – Transfer of shares after resolution for the voluntary winding up of a company – Request for liquidator’s consent to transfer – Liquidator gives conditional consent – Application to set aside condition of consent to transfer – Court’s power to set aside condition where the condition is “not in the best interest of the company’s creditors as a whole” – Corporations Act 2001 (Cth) s 493A – Member’s voluntary winding up – Declaration of solvency – Surplus of assets available for distribution after payment of debts in full – Whether a shareholder who is entitled to share in the surplus rateably is a “creditor” of the company for the purposes of section 493A – Corporations Act 2001(Cth), ss 493A, 501, 553A, 563A - Words and Phrases – Meaning of “creditors” in s 493A of the Corporations Act 2001
Brashs Limited, Re (1994) 15 ACSR 477; (1995) 13 ACLC 110; BC9406167
Insolvency - Deed of company arrangement - Application for court order that company not required to have words “subject to deed of company arrangement” after its name in public documents - Whether discretion of court to grant order under s 447A should be exercised.
Central Spring Works Australia Pty Ltd, Re: Tubemakers of Australia Ltd v McLellan (as Administrator) (2000) 34 ACSR 169; [2000] VSC 145; BC200002311
Insolvency - Removal of administrators - Whether reasonable apprehension of lack of independence of administrators such that they should be removed – Corporations Law s.447A, 448C
D'Aloia (as administrator of Smarter Way (Aust) Pty Ltd) v Jarvie (2000) 18 ACLC 289; [2000] VSC 16; BC200000630
Insolvency - Appointment of administrator - Appointment pursuant to charge - Whether applicants duly appointed as administrators pursuant to charge under s 436C(1) Corporations Law - Whether applicants established existence of charge within meaning of s 436C(1) Corporations Law
Deputy Commissioner of Taxation v Avram Investments Pty Ltd (1992) 9 ACSR 580; (1993) 11 ACLC 224; (1992) 24 ATR 553
Insolvency – winding up – scheme of arrangement in place – court’s discretion to refuse DCT application – balance between prima facie entitlement of petitioning creditor for winding up and supporting creditors for scheme of arrangement – interests of majority of creditors to be favoured – irrelevance of tax losses
Egankarra Pty Ltd v Vince (1990) 2 ACSR 463; [1990] VSC 163; BC9000846
Insolvency - Liquidators – costs – application against liquidator personally – meaning of ‘creditor’ – discretion of court to make order – Companies Code ss 377(5), 420(1)(b)
GF & GM Balsillie Pty Ltd v GF & GM Balsillie Pty Ltd [2001] FCA 1872; BC200108169
Insolvency - administration - meeting of creditors irregularly convened - meeting of creditors irregularly adjourned - termination of administration - order made to regularise - Corporations Act 2001 (Cth) ss 435C, 436E, 437A, 439A, 443A, 443D, 443F, 447A, 471B
Iliopoulos v BM2008 Pty Ltd (in liq) [2010] HCATrans 326
Insolvency – High Court – Special leave application - does a shareholder, or a person capable of being a shareholder, lose the right to bring a derivative action under Part 2F.1A of the Corporations Act once a company is placed in liquidation, or should that be considered to be the ordinary rule, subject to exceptional and appropriate cases? - an unsuitable vehicle for the grant of special leave
Interbanca Pty Ltd, Re [1990] VSC 22; BC9000925
Insolvency - Winding up application – opposed – whether a bona fide dispute – relevant principles – threshold – profit and loss test and review of assets against liabilities
Java 452 Pty Ltd (Administrators Appointed) (No.2), Re [1999] VSC 273; BC9905371
Insolvency - Voluntary administration under Pt 5.3A Corporations Law - Taking possession of leased property - Whether to grant leave under s 440C Corporations Law to take possession of leased premises.
Java 452 Pty Ltd (Administrators Appointed), Re; ex parte Permanent Trustee Australia Limited v Stout (1999) 32 ACSR 507; [2000] ANZConvR 555; (1999) VConvR 54-606; [1999] VSC 252; BC9904116; [(2000) 8 InsolvLJ 43]
Insolvency – Administration – Property – Lease determined after beginning of administration – Whether s 440C application equivalent to re-entry – whether leave to take possession should be granted – Corporations Law ss 440C, 441F, 444F(4). Landlord and Tenant – Lease – Termination of lease – re-entry – whether s 440C application equivalent of re-entry – Re-entry by demand for possession – Corporations Law s 440C – Property Law Act 1958 s 146
Konica Australia Pty Ltd v Aprolab Flashpoint (Australia) Pty Ltd (DCA) (1999) 17 ACLC 1651; [1999] VSC 257; BC9904418
Insolvency - Arrangements and reconstructions - Deed of company arrangement - Prejudice - Notion of motion by creditor of company seeking to set aside resolution passed at meeting of creditors of company and seeking consequential relief pursuant to s 600A(2) Corporations Law - Whether passing of resolution contrary to interests of creditors as whole.
Lin Creations Pty Ltd; Lin Creations Pty Ltd v Morton, Re [1999] VSC 490; BC9908234
Insolvency - Administration - Fraudulent charge - Whether court should interfere in administration of company
Marlan Financial Services Pty Ltd, Re; Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd (1999) 33 ACSR 259; [1999] VSC 435; BC9907709
Insolvency - Application to set aside statutory demand - Whether effective service of notice of motion and supporting affidavit - Appeal against Master’s decision dismissing appellant’s motion to set aside statutory demand on basis of appellant’s failure to comply with provisions of Service and Execution Process Act 1992 (Cth) (SEPA).
Object Design Inc v Object Design Australia Pty Ltd (1997) 78 FCR 60; (1997) 24 ACSR 678; (1997) 15 ACLC 1356; [1997] FCA 917; BC9704183
Insolvency - Whether administrator able to be appointed to company to which provisional liquidator appointed.
Perth Freight Lines Pty Ltd v BM2008 Pty Ltd (in liq) [2011] VSCA 62
Insolvency – Statutory demand – Application to set aside – Whether ‘offsetting claim’ – Whether ‘some other reason’ – ‘Offsetting claim’ arising from alleged entitlement to proportionate share of distributable surplus of creditor company upon completion of voluntary winding up – Alleged entitlement said to arise from transfer of equitable interest in shares of creditor company – No transfer of equitable interest in shares where transfer void by operation of s 493A(1) of the Corporations Act 2001 (Cth) – Decision below not shown to be attended with any doubt – Corporations Act 2001 (Cth) ss 459G, 459H, 459J, 493A.
Rodgers v CJS Panels Pty Ltd [2001] VSC 470; BC200108008
Insolvency - appeal against winding up order - standing to bring appeal. Corporations Act 2001 - ss.471A, 482 - Costs - application hopeless and high-handed - costs sought against both solicitor and client - indemnity costs against client.
SpaCorp Australia Pty Ltd v Myer Stores Ltd (2001) 19 ACLC 1270; [2001] VSCA 89; BC200103084
Insolvency - Statutory demand - Genuine dispute - Appeal against decision of trial judge refusing application to set aside statutory demand - Advance to company setting up business in department store - Construction of agreement - Whether moneys owing on termination of agreement - Whether genuine dispute as to existence or extent of debt.
SpaCorp Australia Pty Ltd v Myer Stores Ltd (No 2) [2000] VSC 484; BC200007178
Insolvency - dispute between parties resulting in defendant serving statutory demand on plaintiff claiming entitlement to repayment of monies provided to plaintiff - Plaintiff disputed defendant’s entitlement to repayment - Master set aside statutory demand - Whether genuine dispute about debt existed.
SpaCorp Australia Pty Ltd v Myer Stores Ltd [2000] VSC 469; BC200006748
Insolvency - Corporations Law, ss.459E, 459G and 459H - setting aside statutory demand - construction of agreement - whether monies owed - arguable case.
Stout & Scales v Permanent Trustee Australia Limited [1999] VSCA 168; BC9906563
Insolvency - Administration - Execution of deed of company arrangement - Discretion to extend time - Application for extension of time to appeal against refusal of restraining order, and for extension of time for execution of deed of company arrangement - Whether execution of deed of company arrangement subject to time limits of Corporations Law.
Thirteenth Corp Pty Ltd v State & ors (2004) 50 ACSR 425; [2004] VSC 320; BC200405683
Insolvency - insolvent trading - creditor's claim - application to summarily dismiss proceeding - whether creditor had arguable case that its debt was wholly or partly unsecured - Practice and Procedure - application for security for costs - delay - nature of case - circumstances justifying order
VFS Group Pty Ltd; Re (& Re Perth Freightlines Pty Ltd) [2010] VSC 396 (appealed)
Insolvency – Application to set aside statutory demand – Offsetting claim – Order by Associate Judge varying the statutory demand and extending time for compliance with the demand for a period of 3 weeks – Appeal against orders – Time for compliance with the demand expired before appeal due to be heard – Orders not authenticated – Orders recalled by the Associate Judge - Associate Judge made a new order extending time for compliance with the demand to a date after the appeal was to be heard – Whether the Associate Judge had the power to extend the time for compliance after the period for compliance had expired – Whether new order the “last order” for the purposes of s 459F(2)(a)(i) of Corporations Act 2001 (Cth) – Whether new order “finally determined” the application to set aside the statutory demand for the purposes of s 459F(2)(a)(ii) of Corporations Act 2001 (Cth) – Associate Judge had no power to make the new order – Supreme Court (General Civil Procedure) Rules r 59.02 – Corporations Act 2001 (Cth) ss 459C, 459F, 459G, 459J.
VFS Group Pty Ltd v BM2008 Pty Ltd [2010] VSCA 277
Insolvency - statutory demand – setting aside – Orders by Associate Judge varying statutory demand and extending time for compliance with the demand by 3 weeks – appeal against orders – Time for compliance with the demand expired before appeal due to be heard – Orders not authenticated – Orders recalled by Associate Judge – New orders made extending time for compliance with the demand to a date after the appeal was to be heard – Whether Associate Judge acted within power in extending time for compliance – Whether erroneous assumption made b Associate Judge as to legal consequences of first set of orders – Inherent jurisdiction of Court to recall and replace orders – Supreme Court (General Civil Procedure) Rules 2005, rr 36.07, 59.02(1), 60.01(1), 77.01(1), 77.06(8) – Corporations Act 2001 (Cth) ss 459F(2), 459G, 459J.
VFS Group Pty Ltd v BM2008 Pty Ltd (no 2) [2010] VSC 593
Insolvency – Application to set aside a statutory demand –– Whether offsetting claim – Whether “some other reason” - Alleged cross-claim arising by virtue of an entitlement to share in a distribution of company surplus upon completion of a voluntary winding up – Entitlement accruing under a transfer of shares - Whether transfer of shares void under s 493A of the Corporations Act 2001 (Cth) – Whether equitable interest in distributable surplus– Assets of company said to include causes of action against former directors and related company – Corporations Act 2001 (Cth) ss 459G, 459J, 493A – Supreme Court (Corporations) Rules 2003 r 16.5(1) – Supreme Court (General Civil Procedure) Rules 2005 r 77.06(7) – Corporations Regulations 2001 (Cth) 5.6.70
Willmott Forests Ltd [2012] VSC 29
Insolvency – Liquidation – Disclaimer of Onerous Property – Where the plaintiff is in liquidation – Where the plaintiff acts as the responsible entity and manager of registered and unregistered managed investment schemes operated on freehold land and land leased by the plaintiffs to the members of the schemes – Liquidator of the plaintiff wants to sell the freehold unencumbered by the leases – Whether the liquidators disclaimer of the leases would have the effect of extinguishing the Growers’ leasehold estate or interest in the subject land – Corporations Act 2001 (Cth) ss 477, 511, 568
Willmott Forests Ltd (No 2) [2012] VSC 125
Insolvency – Managed Investment Schemes – Winding up - Application under section 511 of the corporations act for judicial advice - Where the company in liquidation is the responsible entity and manager of registered and unregistered managed investment schemes Where the schemes are forestry operations conducted on land which is either freehold land owned by the company or leasehold land that the company leases to the members of the schemes Where the liquidators are realising the assets of WFL in the course of winding up the company - Where the liquidators have entered into sale contracts for the land with the trees grown on the land which are the property of the members of the schemes where the contracts are conditional upon the giving of clear title to the land unencumbered by the rights of the members of the scheme, including their rights with respect to the trees application by the liquidators under s 511 of the Corporations Act 2001 (Cth) for approval for entering into and completing the contracts Whether the liquidators acted properly and reasonably in conducting the sale process Whether the liquidators are justified in terminating and disclaiming the agreements that govern the schemes conducted on the land to be sold Where the sale contracts provide for the allocation of the sale proceeds between the liquidators and receivers appointed over the land to be sold Whether the liquidators are justified in allocating the sale proceeds in the manner proposed between themselves and the receivers based on the value of the land to be sold (excluding the trees) Whether the liquidators are justified in allocating the sale proceeds amongst the growers based on the value of the trees sold with the land on a scheme-by-scheme basis in the manner proposed - Corporations Act 2001 (Cth) s 511
Jurisdiction And Powers Of Court Under Section 511 of the Corporations Act - Where substantive rights of third parties affected by the orders and directions sought under s 511 Whether the Court has the power under s 511 of the Corporations Act to determine third party rights Whether the third parties must be joined as parties to the proceeding Factors relevant to the exercise of power to give judicial advice under s 511 Whether the determination of the questions in the winding up of WFL will be just and beneficial Corporations Act 2001 (Cth) ss 479(3), 511(1),(2) Trustee Act 1925 (NSW) s 63 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 16.01
Managed Investment Schemes - Whether any of the land owned by or leased by WFL that was used by the schemes is scheme property Whether the land is held on trust by WFL for the Growers in any of the schemes Corporations Act 2001 (Cth) ss 601FC, 601FC(2), 601EB, 601EE
Words And Phrases - Scheme property, managed investment scheme
