Corporations Act 2001 s 459G : application to set aside statutory demand

The application before the court in Millerview Constructions Pty Ltd v Palmer Plumbing Pty Ltd [2008] QSC 005 raised a significant question regarding the appropriate construction of s 459G of the Corporations Act 2001 (Cth) (the Act). The decision emphasises the importance of ensuring that any application to set aside a statutory demand must be served in a timely way on the creditor at the creditor’s address for service as stated in the statutory demand, or in strict compliance with another manner authorised by the Act.

Setting aside default judgment - whether judgment regularly or irregularly entered - service under Corporations Act 2001 (Cth) s109X(1) - requirements for affadavit of service

In Hill v Robertson Suspension Systems Pty Ltd [2009] QDC 165 McGill DCJ considered the procedural requirements for the service of originating process on a company, and for proving that service for the purpose of obtaining default judgment.The judge’s views adopt a strict and technical construction of the requirements for an affidavit of service under r 120(1)(b). Though clearly obiter, they may well affect the approach taken on applications to enter or set aside default judgments in the lower courts. Pending further judicial consideration of the issue, it is suggested the prudent course is to ensure that the deponent of an affidavit for service effected under s 109X(1)(a) of the Act deposes not only to the location of the registered office of the company but also, at a minimum, provides the source of that information.

The application of the statutory derivative action in Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5 : Well oiled machine or is Pt 2F.1A in need of a tune up?

The statutory derivative action was introduced in Australia in 2000. This right of action has been debated in the literature and introduced in a number of other jurisdictions as well. However, it is by no means clear that all issues have been resolved despite its operation in Australia for over 10 years. This article considers the application of Pt 2F.1A of the Corporations Act to companies in liquidation under Ch 5. It demonstrates that the application involves consideration of not only proper statutory interpretation but also policy matters around the role and the supervision by the court of a liquidator once a company has entered liquidation.

A sample review of Deeds of Company Arrangement under Part 5.3A of the Corporations Act

An empirical review of the operation of Part 5.3A of the Corporations Act 2001 (Cth) is timely given that Australia’s corporate rescue regime marked its 20 year anniversary in 2013. The research project culminating in this report was funded by the 2013 ARITA Terry Taylor Scholarship and entailed a review of a random sample of 72 executed DOCAs (and associated reports and returns) which were effectuated between 1 August 2012 and 31 July 2013. This sample review of DOCAs was undertaken with the intention of producing a ‘snapshot’ of current practices and trends pertaining to DOCAs – ie, average (or typical) rate of dividends paid, the outcomes or goals which DOCAs customarily achieve (eg, genuine company rescues, workouts, enhanced asset realisations or ‘quasi-liquidations’), the profile of the companies executing DOCAs and the average term/duration of DOCAs. The purpose and value of this sample review was to empirically assess the use and effectiveness of one important aspect of Part 5.3A and to further inform consideration and debate as to whether changes are warranted to Australia’s voluntary administration regime.

Seen but not heard? The significance of shareholders under Pt 5.3A of the Corporations Act

The article considers the interests of company members as stakeholders in the event of a company entering voluntary administration and suggests that while shareholders hold a residual interest, they nonetheless have an interest in ensuring that that the company is rescued and perhaps therefore have a role to play in the rescue of the company’s business. In doing so it argues that there is some inconsistency in recent changes in Ch 5 regarding the role of shareholders with some changes recognising their role while others have sought to downplay it.

Actions for declaratory or injunctive relief by the Corporate Regulator under s 471B of the Corporations Act

This article by Ben McEniery discusses the matters a court will consider when leave to commence or proceed against a company in liquidation is sought not by a creditor seeking to prove a debt, but by the corporate regulator pursuing declaratory or injunctive relief.

Debts “incurred” by receivers, administrators and liquidators : the case for a harmonised construction of ss 419, 443A and 556(1)(a) of the Corporations Act

This article analyses the inconsistent approaches taken by courts when interpreting provisions of the Corporations Act which address debts or expenses “incurred” by receivers, administrators and liquidators. The article contends for a consistent construction of these provisions which will enable the legislation to operate (as was intended) for the benefit of persons who supply goods, services or labour to companies in external administration. The article explains how and why debts can be “incurred” by insolvency practitioners continuing on pre-existing contracts. Specifically, the article contends for a construction of ss 419 and 443A of the Corporations Act which renders receivers and administrators personally liable for certain entitlements of employees (eg, wages and superannuation contributions) which become due and payable by reason of the decision of a receiver or administrator to continue a pre-existing contract rather than terminate it.

The Canada Not For Profit Corporations Act: Perceived impact on the governance of federal sport organizations

This thesis examined the impact of the Canada Not-for-Profit Corporations Act (2009) on the governance of national sport organizations (NSO). The impact of the legislation was explored through the perceptions of NSO executive leaders and by analyzing the by-laws in effect before the legislation. The legislation was perceived to have the greatest impact on enhancing accountability, specifically affecting membership categories and director selection. The interview data showed that the legislation was necessary to enhance accountability in many NSOs. The Respondents also demonstrated that they understood the goals sought through the legislation. The data also showed that the boards of NSOs were already in alignment with the goals of the legislation. With respect to governance, the data indicated that NSOs rely almost exclusively on their regional sport associations as voting stakeholders. An emerging issue that came out of the results was the role of athletes in the governance of sport organizations.

English local government from the revolution to the Municipal corporations act : the manor and the borough /

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The 2006 CSRC guidelines for articles of Association of Chinese listed companies : critiquing from an Australian perspective

Compares the Chinese Securities and Regulatory Commission's guidelines for articles of association of listed companies issued in 2006 with 'replaceable' rules in the Australian Corporations Act 2001. Discusses the provisions of the Chinese guidelines and the Australian rules on corporate constitution, interpretation, a company's representative, object clauses, shareholders' powers and meetings and directors. Questions whether the Chinese guidelines facilitate effective corporate governance.

Regulating non-executive directors in Australia : a socio-legal approach

Discusses the role of legislation and codes of conduct in influencing the behaviour of non-executive directors. Outlines the functions of a board of directors and considers the role on non-executive directors in particular. Traces the development of standards of skill required on non-executive directors both under the Australian Corporations Act 2001 and under common law. Questions whether these have brought about a real change in behaviour. Considers whether professionalisation of directorship could be more effective.

Preliminary review of over-regulation in Australian financial services

This article examines a preliminary review and the limited evidence of over-regulation in Australian financial services. The 1997 Wallis Report and the CLERP 6 paper resulted in the amendments to Ch 7 of the Corporations Act 2001 (Cth) by the Financial Services Reform Act. Nearly a decade later the system based upon 'one-size fits all' dual track regime and a consistent licensing regime has greatly increased the costs of compliance. In the area of enforcement there has not been a dramatic change to the effective techniques applied by ASIC over other agencies such as APRA. In particular there are clear economic arguments, as well as international experiences which state that a single financial services regulator is more effective than the multi-layered approach adopted in Australia. Finally, in the superannuation area of financial services, which is worth A$800 billion there is unnecessary dual licensing and duplicated regulation with little evidence of any consumer-member benefit but at a much greater cost

The inherent equitable jurisdiction and the plenary power of the Supreme Court of New South Wales to order the winding up of companies

Not all companies in Australia are amenable to a winding up order pursuant to the Corporations Act 2001 (Cth). The Supreme Court of New South Wales has previously dealt with such winding up applications by apparently focusing on the inherent jurisdiction of the court to consider whether the court has jurisdiction to firstly consider the winding up application. This article proposes an original alternative paradigm: the plenary power provided to the court by s 23 of the Supreme Court Act 1970 (NSW) can be utilised to initially attract the jurisdiction of the court and subsequently the inherent jurisdiction specifically utilising the equitable “just and equitable” ground is available to the court to consider and make such a winding up order if appropriate. Variation of such a paradigm may also be available to the court when considering the inherent jurisdiction in relation to corporation matters more generally.

Notification of data breaches under the continuous disclosure regime

Consumer personal information is now a valuable commodity for most corporations. Concomitant with increased value is the expansion of new legal obligations to protect personal information. Mandatory data breach notification laws are an important new development in this regard. Such laws require a corporation that has suffered a data breach, which involves personal information, such as a computer hacking incident, to notify those persons who may have been affected by the breach. Regulators may also need to be notified. Australia currently does not have a mandatory data breach notification law but this may be about to change. The Australian Law Reform Commission has suggested that a data breach notification scheme be implemented through the Privacy Act 1988 (Cth). However, the notification of data breaches may already be required under the continuous disclosure regime stipulated by the Corporations Act 2001 (Cth) and the Australian Stock Exchange (ASX) Listing Rules. Accordingly, this article examines whether the notification of data breaches is a statutory requirement of the existing continuous disclosure regime and whether the ASX should therefore be notified of such incidents.