ON 31 JULY 1981, the High Court of Australia delivered West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 (31 July 1981).
http://www.austlii.edu.au/au/cases/cth/HCA/1981/38.html
A deficiency in evidence brought about by a failure to call a witness does not allow for an inference to be drawn to remedy the deficiency by filling the gap in the evidence.
Sydney, Australia
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ON 31 JULY 1986, the High Court of Australia delivered Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986).
http://www.austlii.edu.au/au/cases/cth/HCA/1986/40.html
An administrative decision maker’s failure to take into account relevant considerations is an abuse of discretion creating a jurisdictional error that may be remedied by judicial review. The consideration must be relevant and one that the decision maker was bound to take into account.
Determining whether or not a decision maker was bound to take into account a consideration is to be through construction of the statute that confers the decision maker’s power. Implications may arise from the subject matter, scope and purpose of the statute.
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Insolvency is the inability to pay one’s debts when they fall due.
Insolvent individuals are bankrupted under the Bankruptcy Act 1966 (Cth) whereas insolvent companies are wound up under the Corporations Act 2001 (Cth).
BANKRUPTCY
The Bankruptcy Act 1966 applies to all adult individuals or businesses connected with Australia either through their residence or business.
Bankruptcy may be voluntary of involuntary. An application may be made as long as there is a probable debt.
Bankruptcy applications are made (ie filed) with the Insolvency and Trustee Service, which is the office of the Official Trustee in Bankruptcy who delegates its functions to the Official Receivers and/or registered private trustees.
Voluntary and involuntary bankruptcy
Voluntary bankruptcy is sought by completing and filing a Debtor’s Petition and Statement of Affairs. The Official Receiver may reject such an application if the debtor:
Involuntary bankruptcy is sought by an unpaid creditor or creditors presenting a Creditor’s Petition to the Federal Circuit Court or Federal Court of Australia, subject to their being a judgment and no response to a bankruptcy notice after 21 days since service.
Declaration of bankruptcy
A person is declared bankrupt when a Debtor’s Position is order accepted or a sequestration order is made on a Creditor’s Position.
A declaration of bankruptcy results in the person’s divisible property being put under the control of the Official Trustee or, if requested by the creditor, a private trustee. The divisible property is used to pay the debts.
Divisible property
Divisible property includes: the bankrupt’s interest in land, cash, jewellery, stocks, money owed and most other valuable property.
Divisible property includes property owned as tenants in common with another person, such as a spouse. Property owned separately by a spouse is not included.
If the bankrupt owns property jointly with another person, such as a spouse or business partner, the trustee becomes registered as the tenant-in-common of the bankrupt’s interest in the property.
The trustee cannot take certain property, including:
The trustee may also reclaim property given away or sold to others in the 5 years before bankruptcy for less than full value or at any other time if the intention was to defeat creditors.
Income
A bankrupt must also make payments to the trustee out of 50 percent of their income if it exceeds a certain amount.
Restrictions on credit, travel and court proceedings
A bankrupt may not obtain credit for goods or services over $5,040 without advising the provider that they are bankrupt.
The trustee may impose restrictions on the bankrupt’s overseas travel.
A bankrupt may continue or start proceedings relating to personal injury, family death, wrongs to the person (such as defamation) and employment (such as wrongful dismissal or harassment). Other proceedings commenced cannot continue without the approval of the trustee and creditors.
Automatic discharge
A bankrupt is discharged automatically from bankruptcy after three years after filing their Statement of Affairs, unless the trustee objects and seeks an extension of 5 or 8 years.
A bankrupt is released from all outstanding or provable debts after discharge. However, a bankrupt cannot be released from certain debts relating to child support, bonds, fines, proceeds of crime, fraud debts, unliquidated claims, post-bankruptcy debts and student loans and HECS charges.
Annulment
A bankruptcy is annulled when the creditor and trustees have been paid in full or if the creditors accept an offer for less, made through the trustee.
Alternatives to bankruptcy
An insolvent person may avoid bankruptcy if they can satisfy their creditors that they can work their way out of insolvency. Arrangements to effect this include :
WINDING UP
The Corporations Act 2001 applies to companies registered in Australia.
Winding up is the process of bringing a company to an end. It is sometimes referred to as liquidation or dissolution. Liquidation specifically means the conversion of assets and inventory into cash to pay the debts whereas dissolution means the ending of the business.
Both solvent and insolvent companies may be wound up. Insolvent companies are wound up when they cannot pay their debts whereas solvent companies are wound up when they no longer serve any useful purpose.
Winding up is not to be confused with receivership. Receivership involves the appointment by a secured creditor of a receiver to collect and sell charged assets to pay the outstanding debt owed to the secured creditor.
Voluntary and involuntary winding up
An insolvent company may be wound up voluntarily or involuntarily.
Voluntary winding up is done by way of resolutions of the shareholders and/or creditors. A company goes into voluntary administration by appointing an external administrator to take control of the company to investigate the affairs of the company and report to the creditors as to whether or not the company be wound up, enter into a scheme of arrangement with the creditors or control be returned to the directors.
Involuntary winding up, or court liquidation, is when the court finds a company to be insolvent and orders that it be wound up, usually following a failure to comply with a Statutory Demand for monies owing.
Statutory Demands are a request by a creditor to a company to pay to their satisfaction an outstanding debt within 21 days. Failure to pay the debt within 21 days results in a presumption that the company is insolvent.
Once an application for winding up has been made, court permission is needed for voluntarily winding up or alteration of the shareholding and membership of the company.
Appointment of liquidator
Once an order for winding up is made, the court (Federal Court of Australia or Supreme Court of a State or Territory) appoints a liquidator.
The liquidator takes control of the company and attends a number of matters including:
Priority
Priority of payment is to be given to the liquidators (for their costs and expenses), secured creditors, employee entitlements, other unsecured creditors and then shareholders.
Deregistration
At the completion of the liquidation, the liquidator applies for deregistration of the company.
Sydney, Australia
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ON 30 JULY 1986, the High Court of Australia delivered Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986).
http://www.austlii.edu.au/au/cases/cth/HCA/1986/39.html
During a luncheon adjournment, a Family Court counsellor went to the chambers of a judge and had a private conversation in which she expressed certain things including a recommendation that separate representation being granted to the child. Her views were adverse to the husband. Counsel for the parties were then invited to the judges chambers where they were introduced to the counsellor and informed of her recommendations. Comments made by the judge indicated that there had been a private conversation between the counsellor and the judge. After lunch, counsel for the wife made an application seeking appointment of separate representation for the child. The husband asked for the judge to disqualify himself.
The High Court held that it was reasonable for the husband to apprehend that the judge might not bring and impartial or unprejudiced mind to the matter having had a private conversation with the counsellor who had formed an adverse view of him. On that basis, the court made absolute the order nisi for a writ of prohibition directing that the judge be prohibited from proceeding further with the matter.
The case is notable for Justice Mason’s warning that judicial officers are required to discharge their obligations unless disqualified to do so. They must not readily accept suggestions of appearance of bias, otherwise parties might be encouraged to seek their disqualification, without justification, for strategic reasons.
Per Mason J at 352:
“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
…
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”
Sydney, Australia
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Saaghy v Bunnings Group Ltd (Civil Claims) [2014] VCAT 951 (29 July 2014)
Sydney, Australia
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ON 29 JULY 1971, the English Court of appeal delivered Anglia Television Ltd v Reed [1972] 1 Q.B. 60.
http://faculty.law.ubc.ca/biukovic/supplements/anglia.htm
The defendant, Robert Reed, was an American actor best known for his role as Mike Brady in the Brady Bunch television series. In 1968 he contracted with the plaintiff, Anglia Television Ltd, to act in a movie to be filmed in Great Britain. Due to a mix-up with his bookings, the defendant repudiated the contract. The plaintiff sought damages for wasted expenditure incurred before and after the formation of the contract. The defendant argued that the plaintiff was only entitled to wasted expenditure after the contract.
The trial judge awarded the defendant damages for the wasted expenditure incurred both before and after the formation of the contract. The Court of Appeal dismissed the defendant’s appeal.
Lord Denning MR held: “If the plaintiff claims the wasted expenditure, he is not limited to the expenditure incurred after the contract was concluded. He can claim also the expenditure incurred before the contract, provided that it was such as would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken”.
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ON 28 JULY 2014, the NSW Custody Statistics for the June Quarter were released.
Click to access nswcustodystatisticsjun2014.pdf
Numbers of adults and juveniles in custody fell significantly over the period from April to June. Adults dropped by 27% and juveniles dropped 16%.
The drop is said to be attributable to a fall in the number of defendants being held in remand, which coincides with the introduction of the new Bail Act 2013 (NSW).
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The Chief Judge of the District Court of NSW, Justice R O Blanch AM, is to retire.
A retirement ceremony is to be held at 9.30am on 7 August 2014 in the Banco Court, Queens Square, Sydney.
Sydney, Australia
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ON 28 JULY 2014, the NSW Court of Appeal delivered Bunnings Group Ltd v Borg [2014] NSWCA 240.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172896
The Court of Appeal allowed an appeal against a District Court decision awarding damages to customer of Bunnings Dural who was injured when some timber sleepers fell off a forklift onto his foot.
The Court of Appeal found that there was insufficient factual findings to come to the conclusion of negligence: there was conflicting evidence of the tilting of the forklift and no evidence about effect of warning or what would have occurred if there were more staff.
The Court of Appeal found that there were insufficient findings for it to make a substituted judgment.
The Court of Appeal set aside the verdict and ordered a retrial on the grounds that the trial judge failed to make clear findings about breach and causation as required under the Civil Liability Act 2002, ss 5B, 5C, 5D and 5E.
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ON 28 July 2014, the NSW Land and Environment Court delivered Klaric v Mosman Municipal Council [2014] NSWLEC 1156.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173330
The court upheld an appeal and granted consent to the modification of a development modification application in respect of consent for a dwelling house at 69 Parriwi Road, Mosman.
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