*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are using Checkpoint, the links can be found in the Checkpoint PDF at the bottom of this post.

To purchase an article, please email: [email protected] or contact us on 1300 304 195 (Australian customers) or +61 2 8587 7980 (international customers) during business hours (Mon-Fri, 8am-6pm AST).

The latest issue of the Insolvency Law Journal (Volume 29 Part 1) contains the following material:

EDITORIALGeneral Editor: Dr David Morrison

Articles

Unfair Preferences as an Instrument of Restoration – Nikita Angelakis

An insolvent debtor may direct a payment be made by a related party to satisfy the claims of one of its creditors. Following the decision of the Court of Appeal of Victoria in Cant v Mad Brothers Earthmoving Pty Ltd, such a payment may only be an unfair preference if it reduces the assets available for distribution to creditors. This is consistent with the rationale for the preference, and the restitutionary nature of relief available under Pt 5.7B of the Corporations Act 2001 (Cth). The preference operates to restore property of the company, disposed of during the relation-back period, so that it can be distributed to all creditors. Given that the relief seeks to reverse a transfer of wealth from the company, a preference must involve the disposal of an asset to which the company was entitled prior to its liquidation.

To the Purpose: Unduly Narrow Standing under s 447C – Paulina Fishman

Over 1,000 companies enter voluntary administration in Australia each year. Yet sometimes courts declare the purported appointment of an administrator invalid. Such a declaration can be sought most directly under s 447C of the Corporations Act 2001 (Cth). This article examines one possible ground of invalidity: that a substantial improper purpose motivated the purported appointment. That examination reveals that shareholders, directors, and the Australian Securities and Investments Commission may each have a legitimate interest in challenging the validity of a purported appointment. Yet they currently lack standing, in those capacities, under s 447C. It is contended that s 447C standing is too narrow: it does not prevent such persons from seeking a declaration of invalidity, but merely drives them to make less tailored or more onerous applications for that relief.

RECENT DEVELOPMENTSEditor: Dr David Morrison

  • “Electronic Communication” Amendments to the Corporations Act: Implications for Service of Statutory Demands Mark Wellard

REPORT FROM NEW ZEALANDEditor: Professor Lynne Taylor

  • The Operation and Development of New Zealand’s Personal Insolvency Regime in 2020 Lynne Taylor

For the PDF version of the table of contents, click here: Westlaw AU – Insolv LJ Vol 29 No 1 Contents or here: Checkpoint – Insolv LJ Vol 29 No 1 Contents.

Click here to access this Part on Westlaw AU

Click here to access this Part on Checkpoint

For general queries, please contact: [email protected].