Production orders: the problem with ‘concern’ and ‘for the benefit of’

Production orders: the problem with ‘concern’ and ‘for the benefit of’

In Giraud v Albarran (liquidator), in the matter of Digital Infrastructure Pty Ltd (in liq) [2021] FCA 1274; (2021) 156 ACSR 236, the Court reviewed, de novo, a registrar’s orders for production of documents in aid of a public examination. The decision is notable for how the Court treated two phrases commonly used to describe categories of documents. The registrar's order required production of all documents which “record, evidence or concern” any advice “given to, or for the benefit of,” the co
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Insolvency

Annulment bid fails despite judgment set aside

The applicant creditor successfully resisted a bankrupt's application to annul his bankruptcy in JML Rose Pty Ltd v Jorgensen (No 3) [2025] FCA 976. Following a Magistrates Court default judgment for unpaid legal fees, the bankrupt was served with a bankruptcy notice, committed an act of bankruptcy, and was made bankrupt on a creditor's petition. After the sequestration order was made - and after an unsuccessful stay application and an unsuccessful review before Logan J - the Magistrates Court l
1 min read
Filed or just lodged? A registrar's extension order unwound on appeal
Insolvency

Filed or just lodged? A registrar's extension order unwound on appeal

Lamb v Sherman [2023] FCAFC 85; (2023) 298 FCR 79 concerned an appeal from a sequestration order. The appellant had 21 days to comply with a bankruptcy notice. On the last day, at 4:37 pm, her solicitors electronically lodged an application to set the notice aside — seven minutes after the 4:30 pm cut-off in the Federal Court Rules for same-day filing. The registry did not accept it for filing until the following afternoon, by which time the creditor had already presented his petition. The appea
2 min read
Court of Appeal expands first mortgagee's priority in development dispute
Lending

Court of Appeal expands first mortgagee's priority in development dispute

In ProLend Solutions No 50 Pty Ltd v Monaco Solicitors Pty Ltd [2026] QCA 68, the Court of Appeal significantly expanded a first mortgagee’s priority in respect of disputed proceeds of a residential property development under a Deed of Priority. The decision highlights the importance of careful drafting of such deeds. ProLend Solutions No 50 Pty Ltd and Monaco Solicitors Pty Ltd both funded a residential development. The Deed of Priority provided for the proceeds of sale to be distributed first
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Successful claim on fidelity fund

Successful claim on fidelity fund

I appeared for the applicants in Arbuthnot & anor v Queensland Law Society [2024] QCAT 125 in respect of a successful review against a decision by the Queensland Law Society to entirely reject their claim on the fidelity fund. The case followed a (then) solicitor drafting a will which relevantly contained a dispositive clause as follows. “I give devise and bequeath the whole of my estate … unto my executor and trustee UPON TRUST … [provisions dealing with payment of debts, duties and bequests (o
1 min read
Mortgages and unconscionable conduct
Lending

Mortgages and unconscionable conduct

I appeared in a case before Jackson J where a guarantor sought to avoid an action for recovery of possession by asserting the mortgage was void for statutory unconscionable conduct. The guarantor was unsuccessful in so doing, and the court held that if restitution for the loan is not offered, the mortgage ought not be avoided. The result was that even if s12CB ASIC Act had been made out (cognate to ss 21 & 22 ACL) it would have been insufficient to invoke relief. Where equitable relief avoiding
1 min read
Secured creditor nearly loses security by lodging proof of debt
Insolvency

Secured creditor nearly loses security by lodging proof of debt

Secured creditors need to be careful in lodging a Proof of Debt which fails to value their security interest, or they may inadvertently surrender their security interest. The Supreme Court of New South Wales recently considered whether a secured creditor had surrendered the security after they lodged a proof of debt for the full value of the debt, without deduction for the security interest, and were unaware that they were surrendering the security interest by doing so. In the past the courts ha
1 min read
Insolvency

‘Standstill’ agreement is ‘some other reason’ to set aside statutory demand

The Supreme Court of New South Wales recently considered whether a 'standstill agreement' between the parties to refrain from enforcement of a judgment debt was 'some other reason' to have a statutory demand set aside. The Court held that there was a seriously arguable case that the agreement remained in force at the time the statutory demand was issued. The statutory demand was set aside. For more information, see the decision.
Subbies defeat preference claim for payments from head contractor
Insolvency

Subbies defeat preference claim for payments from head contractor

The Supreme Court of New South Wales has recently dismissed unfair preference claims brought by liquidators against six subcontractors in In the matter of Evolvebuilt Pty Limited [2017] NSWSC 901. The decision clarifies the circumstances in which a liquidator can pursue payments by third parties as unfair preference payments, often relying upon the decisions of Emanuel (No 14) Pty Ltd, Re; Macks v Blacklaw & Shadforth Pty Ltd (1997) 147 ALR 281; 24 ACSR 292 and Commissioner of Taxation v Kassem
2 min read
Insolvency

Liquidators need a proper basis to issue demands

Parker, in the matter of Worldwide Specialty Property Services Pty Ltd (in liq) v Worldwide Specialty Property Services Pty Ltd (in liq) [2017] FCA 687 recently considered a liquidator’s application to extend time to pursue voidable transactions under section 588FF of the Corporations Act 2001 (Cth). While the liquidator ultimately obtained relief to extend time to pursue limited transactions by approximately four months, Justice Lee identified two matters of concern which caused him disquiet. O
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Electronic signatures on guarantees: a high risk of fraud and dishonesty

As electronic communications and electronic signatures become more prevalent in modern commerce, there is an increased risk of fraud. Trade credit businesses place considerable reliance upon signatures which appear on terms and conditions of trade and, perhaps more importantly, personal guarantees. This carries risk that a signature of a person has been forged or is a genuine copy of the person's signature applied by an unauthorised person. An unscrupulous person may later claim that a signature
4 min read
Liability limited by a scheme approved by professional standards legislation.