Litigation, Insolvency & Corporate Advisory Lawyers

This matter (among other things) concerned the proper construction of the power to summarily dismiss an application for judicial review pursuant to s 48(1)(a) of the Judicial Review Act 1991 on the basis that it was “inappropriate” for the proceedings to continue or for the application or claim to be granted. In granting leave to appeal, under s 48(5) of the Act, the Court held that the failure to join a third party to the proceeding did not render the application “inappropriate” in circumstances where the relief ultimately sought reflected a dispute confined to the applicant and respondents. Read More >

A successful pleading case appeal from the QSC before the QCA. Read More >

A successful replacement liquidator case on the grounds of perceived lack of independence. Read More >

The QSC decided in favour of the applicant (James’ client) that the decision made by the respondent should be set aside with effect from the day it was made because of the respondent’s failure to comply with the requirements of procedural fairness. Read More >

This was a high-profile test case for insolvency practitioners (who we acted for) and the Commissioner of Taxation. The High Court of Australia decided in favour of Australian Building Systems Pty Ltd (In Liquidation) (ABS) against the Commissioner of Taxation. Counsel for ABS submitted that the Income Tax Assessment Act 1936 (Cth) (tax legislation) imposes a personal liability on the agent or trustee which is confined by the words “to pay tax which is or will become due”. That imposition, on his submission, required for its operation certainty as to the amount of the tax due. The section did not impose any personal liability in respect of a failure to comply with s 254(1)(a) or (b). The personal liability has a narrower compass. The HCA accepted that submission and found that an understanding of the term “tax which is or will become due” in s 254(1)(d) of the tax legislation as referring to tax which has been assessed and is or will become payable, is therefore consistent with an established interpretation of the word “due” as used in the tax legislation. Read More >

The QSC has previously made orders preventing the defendant, namely Fortress, from dealing with assets up to an amount of $40 million until the trial of the proceedings. After those orders were made, there were two important events. The first was that the Full Court of the Federal Court set aside the order by which the funding agreement was approved and remitted the matter to the primary judge for reconsideration. The High Court refused special leave to appeal against that judgment. This called into question the value of the usual undertaking as to damages given by the liquidators to obtain the freezing order. The second event was that after the freezing orders were made, the Supreme Court of New South Wales appointed Mr D J Kerr (who James acted for) as an additional liquidator of the plaintiff company for certain purposes. That appointment was made on the application of the present plaintiffs liquidators because of a perceived conflict of duty and duty, or perhaps duty and interest, from the first plaintiffs also being the liquidators of both Octaviar Limited and Octaviar Administration Pty Ltd. Mr Kerr was appointed to represent the interests of the plaintiff company namely, Octaviar Limited in pursuing any claims against the defendant (Fortress) as presently pleaded in the proceedings. The order made provision for Mr Kerr to formally notify Mr Fletcher and Ms Barnet of his intention to take any steps such as taking over the representation of the plaintiff company in these proceedings. Mr Kerr had not at that point given such notice. After weighing up the balance of convenience the QSC stayed the proceedings for 3 months to enable the recent events to be absorbed, Mr Kerr to seek funding and determine whether or not he would formally notify Mr Fletcher and Ms Barnet of his intention to take any steps such as taking over the representation of the plaintiff company in these proceedings. Read More >

Successfully resisting Octaviar’s case against Fortress being transferred from the QSC to the NSWSC. Read More >

Successfully resisting, as a national test case, the reinstatement of credit charges under the Credit Act lost as a consequence of systemic disclosure errors by the credit provider. Read More >

This matter had a lengthy history. Proceedings were instituted on 25 August 1995. As is unfortunately common in representative proceedings, there followed a considerable number of interlocutory applications by James’ client namely, the first respondent Terranora Lakes Country Club Limited (In Liquidation) (Club), which principally concerned the applicant’s pleading. Mediation which took place in December 2003 was however successful in part. Agreement was reached with Club, this applicant and four applicants in related representative proceedings and another company which led to the execution of a Deed of Compromise. The Club held a finite fund and instead of exhausting the fund the Club agreed to settle case by paying dividends to the applicant class on the one hand and trade and other general creditors on the other hand.

Obtaining a NSWSC direction that special purpose liquidator is justified in accepting an offer to compromise the Queensland Fortress proceedings. Read More >

James acted for the Special Purpose Liquidator of OL (SPL) in this case. The NSWSC decided it should not give directions under s 479(3) which would have the effect of retrospectively ratifying what the OA Liquidators had already done. The OA Liquidators would be justified in proceeding henceforth on the basis that they validly entered into the Fortress Funding Deed and that that Deed was valid, effective, and binding on OA, notwithstanding the judgment of the NSWCA. The OA Liquidators would be justified in adopting the position that OA is entitled to receive payments pursuant to clauses 7.2, 7.3 and 7.5 of the Fortress Funding Deed and should be given advice to that effect. The OA Liquidators would be justified in releasing the Castle Charge, and in not releasing, at least for the time being, the other charges assigned to OA by Fortress. To the extent that the General Purpose Liquidators of OL (GPLs) may require leave to continue to act, where those charges have been assigned to OA, such leave should be granted. The OA Liquidators were entitled to negotiate with the Commissioner a resolution of OA’s liability as garnishee without reference to the SPL, and did not need a direction to do so. They should not be authorised to negotiate with the Commissioner, so as to bind OL and to the exclusion of the SPL, in respect of the OL Proof into OA. The SPL’s powers should be expanded to include (a) calling for, assessing and administering any proof of debt lodged by OA in the estate of OL, without previous limitations; (b) representing the interests of OL in respect of any proof of debt that may be appropriate for it to lodge in the estate of OA (including by appealing the decision of Mr Fletcher and Ms Barnet as the liquidators of OA rejecting OL’s proof dated 11 April 2011 for approximately $514m; and (c) representing exclusively the interests of OL in respect of OL’s claims to be a creditor of OA, and OA’s claims to be a creditor of OL. The GPLs should be required to provide him with such assistance in the winding up of OL as he reasonably requires in his capacity as SPL. There should not be any formal deferral of the SPL’s enlarged powers. Read More >

The plaintiff respondent claimed that there was money owing pursuant to a guarantee executed by both defendants (including the defendant applicant who James acted for) where the guarantee related to repayment of a loan advanced to a borrower. The advance was not made directly by the plaintiff to the borrower. Certain paragraphs in the pleading alleged how the word ‘lend’ in a loan agreement was to be properly understood. This raised the question whether those allegations were of evidence that would not be admissible in interpreting the agreement and whether the allegations were clearly linked in the pleading to the allegations that the loan was advanced to the borrower. This unravelled further as to whether those allegations could be said to have a tendency to prejudice or delay the fair trial of the proceeding. It was submitted that the offending paragraphs ought to be struck out. The QSC ruled in favour of that submission. Read More >

Successful in obtaining orders from the FCA that the appellant debtor’s appeal be dismissed, and the appellant pay the respondent’s costs of the appeal. Read More >

The QCA made it clear that equitable defences of lack of benefit and change in position are not available to defeat a claim for reasonable remuneration in a case where work has been performed at the request of another. Thereby, James successfully overturned a pleading decision by QSC on appeal to the QCA. Read More >

Successfully sought a ruling from the QSC that neither a breach of fiduciary duty nor a breach of a duty imposed by s. 232 of the Corporations Law is capable of founding an actionable conspiracy involving unlawful means. Read More >

An application for Judicial Advice to determine if a special purpose liquidator was justified in entering into a settlement deed.

Read More: Re Octaviar Ltd [2020] QSC 353 | Supreme Court of Queensland – Trial Division Caselaw (queenslandjudgments.com.au)

Three proceedings heard together whereby the plaintiff coffee growers were successful in being granted judgment, with a cumulative total of approx. $9.1 million, for loss occasioned due to the spraying of crops for treatment of fruit-fly which caused reduced yield in the affected crops.

This is a claim by the liquidators of Eureka Co-Operative Housing Society No.2 Limited (in liquidation) against a former director and his financial company. The defendants applied for dispensation from the pleading requirements of the

Uniform Civil Procedure Rules 1999 and relief in limine from the disclosure obligations. The issue was whether the compliance with the Rules of pleadings and disclosure would interfere with the first defendant’s privilege against self-discrimination.

Read More :

https://www.queenslandjudgments.com.au/caselaw/qsc/2019/304

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