By Associate Professor Anil Hargovan The recent decision by the Federal Court in McLellan, in the matter of The Stake Man Pty Ltd v Carroll  FCA 1415 (hereinafter Stake Man) excused a director from liability for insolvent trading based on statutory considerations concerning, inter alia, honesty and fairness under the Corporations Act 2001 (Cth).
By Jason Harris and Michael Legg. The fallout from the global financial crisis (GFC) has focused attention on the efficiency of Australia’s corporate rescue laws as companies struggle under onerous debt levels and attempt to rebuild balance sheets and restructure operations in much tighter credit conditions than in previous years. This article considers the tension between laws that seek to compensate investors through the use of class actions and laws that aim to promote corporate rescue attempts.
By Tina Hoyer. One of the main elements to be established by a liquidator in order to successfully challenge a pre-liquidation transaction known as an unfair preference is contained in s 588FA(1)(b) of the Corporations Act 2001 (Cth). It was foreshadowed that the enactment of s 588FA would cause no fundamental change to the law with respect to unfair preferences. However, this article will demonstrate that there have been subtle, yet significant, changes to the way the court deals with unfair preferences since the enactment of s 588FA.
By Robert J Wilczek and Douglas C Murray. Australian companies often form partnerships to conduct their business operations in the United States in order to take advantage of certain benefits under Australian and US tax laws. Before forming a US partnership, an Australian company should take care to ensure that the nature and characteristics of the US partnership it intends to form, which may differ drastically from those of an Australian partnership, will not thwart the Australian company’s ability to realise Australian tax benefits or expose its treasury to “upstream” liability for obligations of its US subsidiaries.
Australian regulation of foreign direct investment by sovereign wealth funds and State-owned enterprises: Are our rules right?
By Greg Golding. In recent years there has been considerable debate surrounding investment in Australia by entities affiliated with foreign governments.
The benefits to Australia of foreign direct investment seem clear, even if sometimes poorly understood by the general public.
By Chris Finn. In Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, the High Court has made a strong statement setting out a clear Ch III basis for supervisory judicial review of inferior courts and tribunals acting under State legislation. The corollary is that privative clauses will be of limited effect, being unable to validly exclude review for jurisdictional error.