archive-au.com » AU » A » AWBRISBANELAWYERS.COM.AU

Total: 61

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".
  • Applying To Make An Individual Bankrupt, Bankruptcy, Law Articles, Brisbane Lawyers, Law Firms
    failure The rules in the Federal Court and Federal Magistrates Court are the same but the filing fees are cheaper in the Federal Magistrates Court Before filing a search needs to be undertaken to make sure the debtor is not already an undischarged bankrupt The petition is then filed together with an affidavit supporting the information in the petition of the search and of service of the Bankruptcy Notice All these forms can be found on the website of the Federal Magistrates Court The documents have to be completed accurately otherwise the petition can fail Simple mistakes such as not spelling a name correctly or mis stating amounts owed can lead to failures You can request that a private registered trustee act as the trustee of the bankrupt estate by including a signed consent form from the private trustee If no consent is obtained the official receiver ITSA will act as the official trustee After the documents are filed the return date is usually set down for three weeks from the date of filing the petition this allows enough time for service of the petition and other matters to be completed The registry will complete a checklist for the file to confirm all matters have been attended to and there are no mistakes on the face of the documents If any errors are identified steps are needed to correct the errors if possible If you have any debtors that are failing to make payment to you then we can assist you in chasing those debts and discuss not only bankruptcy but all processes available to you to recover your money Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Debt Recovery

    Original URL path: http://www.awbrisbanelawyers.com.au/a1002-applying-to-make-an-individual-bankrupt-bankruptcy-notice-articles-law.html (2015-11-26)
    Open archived version from archive


  • Bankruptcy And The Family Home , Brisbane Debt Recovery, Bankruptcy and Insolvency Lawyers, Solicitors
    trustee can request that a Statutory Trustee for Sale be appointed over the co owner s share of the property to force the sale Where a Mortgage Exists Bankruptcy can itself lead to a default on the mortgage In this case the mortgagee then has the right to sell the property however they are unlikely to exercise this right where the bankrupt party still has the capacity to continue making payments on the loan The trustee will generally allow these repayments to continue being made provided there are arrangements for the equity to be paid into the estate In the case of joint ownership where a mortgage has been granted only to one party under the doctrine of exoneration the person who secured the loan is the one obligated to repay the loan In that situation the co owner is considered a guarantor and is only obligated to meet any shortfall The doctrine of exoneration will apply if the trustee finds persuasive evidence that it is applicable The Sale Process Where the trustee is satisfied that there is equity in the property the sale process begins with the trustees name replacing the bankrupt s name on the certificate of title A caveat can be lodged by the trustee to protect the estate s interest while a decision is made about what to do where there is doubt about the outcome of a potential sale Section 129AA of the Bankruptcy Act states that the trustee must realise the property within a period ending 6 months after the discharge of bankruptcy otherwise it may revest in the discharged bankrupt Where a sale takes place the bankrupt is usually given a few weeks to make alternative living arrangements before having to vacate and in some cases will be permitted to remain in possession

    Original URL path: http://www.awbrisbanelawyers.com.au/bankruptcy-family-home-debt-recovery-brisbane-lawyers-solicitors.html (2015-11-26)
    Open archived version from archive

  • Bankruptcy Legislation Amendment Bill 2009, Law Articles, Brisbane Lawyers, Law Firms
    for a creditor s petition from 2 000 to 10 000 If the debtor gives a notice to file a debtor s petition there is generally a stay on creditors taking action This stay would be extended from seven to 28 days The draft also proposes an increase in the debt income and assets thresholds for eligibility for debt agreements The present thresholds are after tax income of less than 62 735 40 unsecured debts and assets of less than 86 647 20 These thresholds were last revised in 2002 with the aim of making debt agreements more widely available The reforms will entail an increase in these limits of 20 each The exposure draft contains quite a deal of material about the remuneration of trustees in bankruptcy The overall purpose of the amendments relating to remuneration of trustees is to provide a clearer regime for setting and reviewing remuneration In particular they provide a more accessible and streamlined process for challenging the trustee s remuneration claim The amendments reinforce the principle that creditors have oversight of a trustee s administration of a bankrupt estate and should be required to approve claims for remuneration This ensures creditors who are the beneficiaries can be satisfied that the remuneration is reasonable and reflects the value added to the estate by the trustee s work Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Debt Recovery Bankruptcy Insolvency in Queensland For Brisbane and surrounding areas including Ipswich Redlands Logan Redcliffe and Caboulture call 07 3229 4459 or email us Office Location and Contact Details Brisbane Aitken Whyte Lawyers Level 2 303 Adelaide Street Brisbane Ph 617 3229 4459 Fax 617 3211 9311 E enquiries

    Original URL path: http://www.awbrisbanelawyers.com.au/a0309-bankruptcy-legislation-amendment-bill-2009-articles-law.html (2015-11-26)
    Open archived version from archive

  • Company Wound Up In Insolvency Under Corporations Act, Debt Recovery, Brisbane Lawyers, Law Firms
    21 days as there was no genuine dispute about the monies being owing The respondent failed to make payment and as such it had committed an act of insolvency The applicant as such applied to the Supreme Court asking for orders that the respondent company be wound up in insolvency and a liquidator appointed to the company In a hearing before the Supreme Court of Queensland the Court was satisfied that the applicant had proved its case in this litigation and as such made relevant orders winding up the company and appointing liquidators and ordering the respondent company to pay the applicant s legal costs associated with the application The use of the statutory demand in appropriate cases where there is no genuine dispute about the debt owing is a valuable tool in debt recovery matters It avoids a party having to first prove their loss in a court through a trial or other proceedings and the time and expense involved in those processes It allows a creditor to go directly to enforcement procedures and if the 21 day period expires without satisfaction can apply to the Supreme Court or Federal Court to obtain orders that the debtor company be wound up in insolvency That being said if the company has no assets it does not mean that a creditor necessarily is going to recover what is owed to them Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Debt Recovery Bankruptcy Insolvency in Queensland For Brisbane and surrounding areas including Ipswich Redlands Logan Redcliffe and Caboulture call 07 3229 4459 or email us Office Location and Contact Details Brisbane Aitken Whyte Lawyers Level 2 303 Adelaide Street Brisbane Ph 617

    Original URL path: http://www.awbrisbanelawyers.com.au/a1201-company-wound-up-in-insolvency-corporations-act-debt-recovery-bankruptcy.html (2015-11-26)
    Open archived version from archive

  • Creditor’s Statutory Demand For Payment Of Debt| Winding Up | Form509H, Strict Compliance
    bold warning The concern being that the statutory demand which commenced the proceeding may not be brought to the relevant company officer s attention and if it was its gravity might not be recognised They also stated that the new Form 509H contains a boxed bold warning noting the seriousness of the consequences for a company of a failure to respond to the demand The Court considered the validity of the statutory demand in light of these two aspects of the explanatory statement as they establish the importance of the bold warning notice Section 459E of the Act provides that a statutory demand may be served by a creditor and section 459 2 e says that the demand must be in the prescribed form His honour maintained that the failure to incorporate the warning notice rendered the statutory demand invalid and subsequently dismissed the winding up application Greenwood J also noted that this was not an application to set aside the statutory demand on the basis of a defect in the demand under section 459J 1 a The warning notice in applications to set aside a statutory order In Randall v Chepan 2009 NSWC 783 Randall an application to set aside a statutory demand under section 459J was set aside by White J as despite the clear exclusion of the warning notice being an obvious defect in the statutory demand the plaintiff did not produce evidence providing that this omission caused any substantial injustice as required by section 459 1 a In Randall White J conceded that there might be situations where substantial injustice can be established in setting aside a statutory demand based on the omission of the warning statement such as where the affidavit material required fell short of properly raising the genuine dispute which would have prevented the statutory demand White J also considered section 459 1 b of the Act and whether the omission of the warning could be some other reason to set aside the demand however the plaintiff accepted that it was a defect under s459 1 a and it was noted that an omission would still not provide some other reason In JSBG Developments v Kozlowski 2010 NSWSC 97 Palmer J referred to the judgement of White J in Randall when considering an application to set aside a statutory demand under s459J of the Act Palmer J concluded that the absence of a warning was a mere defect and did not cause substantial injustice dismissing the application In both of these cases the plaintiff did not argue that the demand was statutorily invalid where in Townview Holdings the accepted argument was that the statutory demand was not in the prescribed form and therefore invalid Declaring a statutory demand null is not a new argument and it was observed by Lockhart J in Topfelt Pty Ltd v State Bank of New South Wales Ltd 1993 47 FCR 226 that where a deficiency is so fundamental the demand may be incapable of being a statutory

    Original URL path: http://www.awbrisbanelawyers.com.au/creditors-statutory-demand-form509h-company-insolvency-brisbane-lawyers-solicitors.html (2015-11-26)
    Open archived version from archive

  • Determining Solvency Of A Company - Cash Flow Assessment - Insolvent Trading, Corporations Act
    in support of earlier leading decisions that debts placed on deferred payment terms could be considered as a source of credit available to the company and that such agreements are important when looking at the company s overall ability to pay its debts It was therefore relevant that the managing director of one of the companies who had deferred payment of their debt was also a shareholder and director of Cube Footwear and that he was related to the other shareholders and directors Further it was also relevant that one of the other shareholders in Cube Footwear was a shareholder in the second company that had deferred payment of Cube s debt The crux of Cube Footwear s argument was that it could not be held to be insolvent based on its potential inability to repay those debts because it required looking too far into the future to inform the answer of solvency and that given the family relationship between the directors of the companies it was highly likely that they would defer payment as needed in the future Cash Flow Assessment Commercial Solvency vs Balance Sheet Financial Insolvency Cash Flow Assessment Commercial Solvency In determining whether Cube Footwear was solvent as defined under the Corporations Act the court looked at the relevance of the cash flow test also known as the commercial solvency of the company This involved an assessment of the ratio of current assets to current liabilities with only a secondary focus on whether the company has an overall net surplus In looking at the current assets and liabilities the cash flow assessment involves an overall examination of the company s current prospects by looking at the available assets and the liabilities which will be payable within a certain amount of time from the date of assessment The Judge in this case commented that the certain amount of time had not been clearly defined by previous case law however the court should avoid speculation which would be less likely to occur by looking ahead to a period of months rather than years In this particular case the Judge was willing to look forward to the period when payment of the two deferred debts would be due from the date of judgment this was approximately 9 months into the future There was little evidence that Cube Footwear would be able to pay these debts at the time they fell due a fact in and of itself meeting the definition of insolvency under the Corporations Act However of relevance to this case was the fact there was strong evidence of which the Judge was satisfied that the familial relationship between the directors of the three companies involved in those debts along with evidence given by both creditors strongly suggested that the debts would be further deferred dismissed until payment was possible In answer to this test is was held that measured as a matter of cash flow or commercial reality Cube Footwear has shown that it is solvent Balance

    Original URL path: http://www.awbrisbanelawyers.com.au/determining-solvency-of-company-cash-flow-assessment-wound-up-in-insolvency-corporations-act.html (2015-11-26)
    Open archived version from archive

  • Insolvent Trading, Law Articles, Brisbane Lawyers, Law Firms
    by showing the company incurred the debt the company was insolvent at the time of incurring debt or became insolvent by incurring that debt or other debts including that debt at that time there were reasonable grounds for suspecting that the company was insolvent or would become insolvent the director was aware or a reasonable person in a like position would be aware at that time that there were such grounds for suspecting that the creditor suffered loss or damage in relation to the debt because of the company s insolvency that the debt was wholly or partly unsecured when the loss or damage was suffered Solvency of company The question whether the company is insolvent is a question of fact to be ascertained from a consideration of the company s financial position taken as a whole It will generally be considered solvent if it is able to pay all its debts as and when they become due and payable or within a relatively short time It would be acceptable for this purpose that the company s assets are readily available to be converted to cash to pay debts The company s ability to borrow on the security of its own assets is a significant consideration to find solvency as well as the willingness of the company s secured creditors to continue lending despite temporary financial difficulties Reasonable grounds for suspicion Common indicators of insolvency which may provide reasonable grounds for suspicion are matters such as the company is not trading profitably the company exceeds its overdraft frequently and by large unauthorised amounts the company repeatedly fails to meet its loan obligations cheques issued by the company are dishonoured regularly cheques are written and signed but are not sent to creditors and are held back until the company receives funds failing to pay superannuation contributions for employees paying company debts on the director s personal credit card seeking urgent short term loans to pay bills selling assets at an undervalue in order to obtain access to cash to pay bills etc Defences to insolvent trading Even if insolvent trading is established a director may be relieved of liability if the director can establish one of the four statutory defences that at the time the debt was incurred the director had reasonable grounds to expect and did expect that the company was solvent and would remain so and that the director made the necessary inquiries to inform themselves of the company s financial affairs that at the time when the debt was incurred the director had reasonable grounds to believe and believed that a competent and reliable person was responsible for providing the director with adequate information about the company s solvency and that this other person was fulfilling their responsibility Must also show that the director expected on the basis of the information provided by that other person that the company was solvent and would remain so even if the debt was incurred The director is not required to prove

    Original URL path: http://www.awbrisbanelawyers.com.au/a0109-insolvent-trading-articles-law.html (2015-11-26)
    Open archived version from archive

  • Liquidation, Winding Up A Company, Insolvency, Lawyers Brisbane
    The Court may also wind up a company for a limited number of other reasons including situations where there are irreconcilable disputes between directors and the company shareholders Insolvency A company is deemed insolvent where it is unable to pay all its debts as and when they fall due This may occur in situations where the company has a surplus of assets but has no ability to liquidate those assets quickly It is common for a company to be deemed insolvent where it fails to satisfy a statutory demand issued by a creditor Liquidators Who are they and what do they do Liquidators are specialist accountants Registered liquidators have registration with ASIC and can take all types of appointments except Court ordered appointments Official liquidators are experienced liquidators who are registered with ASIC and the Court and may accept all corporate appointments including orders by the Court Powers of Liquidators The liquidator s powers are set out in the Corporations Act and include all the powers vested in the company s directors A liquidator also has the power to investigate and examine the affairs of the company examine the directors and members under oath realize the company assets identify void transactions conduct or sell business of the company and admit debts and pay out dividends In their investigations a liquidator may hold public examinations seize books and records gain access to property and detain persons relevant to the investigations Once the liquidator is appointed the directors cease to have any authority Control of all assets and the conduct of any business or financial affairs transfer to the liquidator Provisional Liquidation A liquidator may be provisionally appointed by the Court to exercise control of company assets during the period between the winding up application being filed and the time when the application is heard by the Court A provisional liquidator will be appointed where it is believed the company s assets are at risk and need protection in the interests of the creditors If the company is not wound up at the application hearing control may pass back to the directors of the company Directors Obligations Co operation with liquidator The company directors must cooperate with the liquidator throughout liquidation and provide the liquidator with all the information in relation to the company s financial affairs This will include a Director s Questionnaire and Report as to Affairs which should detail the assets and liabilities of the company at the date of the liquidator s appointment If a director does not comply with these obligations this may constitute an offence under the Corporation Act Creditors Rights Secured creditors rights are unaffected by liquidation and may prove in the liquidation for any shortfall of security However unsecured creditors lose their right to recover money from the company Unsecured creditors have a right to prove for dividends in the liquidation Length of Liquidation There is no set time limit however the liquidator has an obligation to wind up the affairs of the company

    Original URL path: http://www.awbrisbanelawyers.com.au/liquidation-winding-up-a-company-insolvency-brisbane-lawyers-solicitors.html (2015-11-26)
    Open archived version from archive