Deficient advertising is not saved by the information memorandum. In a recent case involving a rural property in Queensland, the mortgagee failed to comply with its duty to take reasonable steps to obtain market value because the mortgagee’s advertising did not adequately refer to the water rights relating to the property and their tradability.
Until recently, there has been an unresolved issue as to whether a mortgagee in possession is liable to pay the recovery costs incurred by the body corporate in attempting to recover outstanding levies from the mortgagor.
Secured creditors should remember that submitting a proof of debt and voting in a liquidation may result in the loss of their security if they get it wrong.
Secured creditor recovers payment of statutory employee entitlements from liquidator in priority to unsecured creditors
Failing to comply with a statutory demand could result in a company being wound up.
Liquidators are commonly appointed to a company where, prior to liquidation the company was a trustee of a trust. Often when the liquidators are appointed, the company has ceased to be the trustee and a replacement trustee has not been appointed.
When liquidators are appointed to a company, unsecured creditors often don’t take much of an interest in the liquidation process, immediately assuming all is lost.
The recent decision of the Federal Court in Carter in the matter of Damilock Pty Ltd (Damilock) highlights the need for liquidators to review current practices when paying priority creditors (e.g. employee entitlements).
Recent events, such as the Queensland Rugby Club going into liquidation and Darrell Lea entering into voluntary administration, have shown that Australian companies are not immune from the fall-out from the difficult global economic environment.
In disputes over unpaid debts, it is a common debtor strategy to send the creditor a cheque for less than the total amount claimed together with a letter saying that the amount tendered is in full and final settlement of the debt.
Lenders in New South Wales breathed a sigh of relief earlier this month when the Supreme Court ruled in Bank of Western Australia Ltd v. Primanzon [2010] NSWSC 862 that two part-time commercial property investors could not claim relief under the Contracts Review Act 1980 (NSW) because the loans advanced to them were entered into in the course of a trade, business or profession carried on by them.
It is not uncommon in shareholder disputes involving allegations of oppression under section 232 of the Corporations Act 2001 (Cth) for the aggrieved shareholder to seek to wind up the company as part of a wider strategy seeking a buy-out order.