Debt Recovery, Bankruptcy & Insolvency Law

Quite often, a sequestration order is made by the Registrar of the Court in the absence of the debtor. As a result of the sequestration order, a trustee is appointed to the Bankrupt Estate of the debtor.

Many family law disputes involve issues relating to various trusts. Family lawyers are often approached by clients who are either trustees and/or beneficiaries of a trust. Often their children and other family members are beneficiaries as well.

The traditionally accepted view of law is that it is an independent set of rules governing society routinely applied by reference to existing precedent. The law is considered autonomous and distinct from custom, morality, religion and politics. In western civilisations, legal systems are built on liberal foundations.

The law was not constructed on a bare canvas, but on value-laden foundations. Ordinarily, when a house is built on a sloping block, the nature of that slope determines the type of structure erected upon it. The structure is changed to suit the conditions of the landscape, not vice-versa. It is no different with the law.

In commercial transactions, the onus of proving (on the balance of probabilities) that a contract does not exist rests with the party disputing what courts presume to be an agreement intended to have legal force. For disputes concerning family members, courts take the viewpoint that “each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted”.

The doctrine of Consideration is concerned with the price paid for a promise. Consideration is something of legal value given in exchange for a promise.

Equitable Estoppel is a cause of action that protects parties’ reliance on promises which have the appearance of a contract, but which do not satisfy the elements needed to create binding legal relations, that result in detriment to one party. The case of Waltons Stores (Interstate) Ltd v Maher is a landmark case which has greatly affected the common law of contract.

In certain circumstances in the past, a situation could arise where a spouse facing family law property proceedings would file for bankruptcy or be declared bankrupt (the Bankrupt), with the result of becoming a “penniless partner” of a non-bankrupt spouse (the Spouse), whose claim might then be defeated in the Family Court property settlement proceedings. The only salvation for the Spouse was to apply to the Federal Court for annulment of bankruptcy on the grounds of some abuse of process.

Natural justice requires that a person be made aware of the claim or charge brought against him or her, and be given an opportunity to defend such a claim. For this reason, the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) set out precise guidelines for service of court documents.

Insolvency law, in particular that part of insolvency law covered by Part 5.4 of the Corporations Act 2001 (Cth) (the Act), demands strict compliance with specific timeframes and legislative provisions.

Despite the transitional periods having expired last year, the requirements (and existence) of the Personal Property Security Register (PPSR), created pursuant to the Personal Property Security Act 2009 (Cth) (PPSA), remain unknown to many consumers and suppliers. If you are involved in business or personal transactions regarding the provision of goods on any terms other than a cash on delivery basis, or you have a line of credit with suppliers, or provide a line of credit to others, you should familiarise yourself with the PPSR and PPSA.

For debtors who need a little breathing space to consider their options – voluntary bankruptcy? payment arrangements? defended proceedings? - section 54A of the Bankruptcy Act 1966 (Cth) (the Act) gives certain debtors the opportunity essentially to freeze unsecured debts for 21 days. But are the potential benefits worth it? Or does filing a declaration of intention simply prolong the inevitable?

Opening the mail to find a creditor’s statutory demand, threatening to wind up your company if a debt is not paid within 21 days, is not a pleasant occurrence for any director. The task becomes even more repugnant if the creditor listed in the demand actually owes your company money too. This is known as an offsetting claim, and is dealt with in section 459H of the Corporations Act 2001 (Cth) (the Act).

A guarantee is a promise by a third party to be liable to a lender for the obligations of a debtor, if the debtor defaults on their obligations. These are serious undertakings as they can render a guarantor liable for the whole amount owed by the debtor. Guarantees become enforceable when the debtor has defaulted on their obligations. However, there are numerous reasons why a guarantee may be unenforceable.

When a creditor provides a party with a loan or the provision of goods or services on credit, a sincere promise by the debtor to repay the loan is rarely satisfactory. Such a promise will be no good to a creditor if the debtor goes bankrupt, no matter how much they wanted to honour their obligations. Therefore it is normal for a creditor to require some other source of repayment they can look to if the worst should happen. This is known as a guarantee.

When a company becomes insolvent, the liquidator is entitled to all of the assets that belonged to the company at the commencement of the winding up, so they can manage and distribute that property equally amongst the company’s creditors.

The Court has power under Section 98 of the Civil Procedure Act 2005 to determine by whom, to whom and to what extent the costs of the proceedings are to be paid.

Section 74F of the Real Property Act 1900 (NSW) permits a person who claims to be entitled to a “legal or equitable estate or interest in land” to lodge with the Registrar-General a caveat, prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled.

The recent introduction of the National Consumer Credit Protection Act 2009 and related National Credit Code, have increased the regulation of credit providers in Australia. If your business engages in credit activities for personal, household or domestic purposes such as directly providing credit, making related suggestions or acting as an intermediary between a lender and a consumer, then you will probably need an Australian credit license to carry on your business. The licenses are administered and enforced by the Australian Securities and Investments Commission (ASIC).

When a company becomes insolvent, the liquidator is entitled to all of the assets that belonged to the company at the commencement of the winding up, so they can manage and distribute that property equally amongst the company’s creditors.

When a company becomes insolvent, the liquidator is entitled to all of the assets that belonged to the company at the commencement of the winding up, so they can manage and distribute that property equally amongst the company’s creditors.

As a director of a company, you have many duties and obligations arising from common law and statute. It is important to be aware of these duties regardless of how large the company is or how much involvement you have in the company.

Deciding how to settle a dispute - Choosing a process - Commencing litigation - Pre-trial procedures - Discontinuance or withdrawal - Enforcement of judgments - Costs of Litigation - Time limits - Lawyers

For any school, recovering unpaid school fees can be difficult task.

People often think of debt collectors as professional bullies or “stand-over” men who break debtor’s arms to make them pay. Whilst these methods might occasionally be effective, they are usually highly illegal, and no self-respecting business would ever want to be associated with these sorts of tactics.

A Receiver enjoys a unique position in modern corporations law. While a receiver is appointed as the agent of a corporation, the receiver’s primary purpose is to act in the interests of their appointer in realising the assets of the corporation for the benefit of a secured creditor who has usually appointed the receiver under a contractual right in a debenture.

Each lot owner in a strata plan is required to pay levies (usually due quarterly) which make up the administrative fund and sinking fund of the strata scheme.

The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.