On 19 January 2010, in response to perceptions of inflexibility in Australia’s corporate insolvency regime, Chris Bowen, the Minister for Financial Services, Superannuation and Corporate Law, announced a major review of Australia’s insolvency laws.
In a move designed to help directors better understand their statutory duty to prevent insolvent trading, ASIC last week released Consultation Paper 124 – Directors’ duty to prevent insolvent trading: Guide for directors (Consultation Paper).
Trade suppliers, commercial credit providers and parties to commercial transactions commonly include what is referred to as a ‘charging clause’ in their terms of trade, contractual agreements and guarantee documentation.
In Heesh v Baker [2008] NSWSC 711, the New South Wales Supreme Court considered whether the holders of redeemable preference shares could be “creditors” for the purposes of Part 5.3A of the Corporations Act 2001 (the Act).
The Qld Supreme Court decision in Royalene Pty Ltd v Registrar of Titles & Ors (2008) QSC 64 (7 April 2008) involving a forged mortgage registered in 2004, appears to be a win for the registered mortgagee. The decision however must be viewed in light of subsequent amendments made to the Land Title Act 1994 (Qld) (LTA) to reduce the incidence of identity fraud.
In the case of Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9, handed down on 26 March 2008, the High Court confirmed that Courts do not have the power to extend time for compliance with a statutory demand after the period for compliance with the demand has expired.