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  • Recovering Part Of A Debt Owned By A Company, Creditors Statutory Demand, Insolvency, Lawyers Brisbane
    be obtained early in relation to undisputed components of debts It does mean more cost though for creditors and time Hopefully a higher court will overturn these decisions Section 459E Corporations Act 2001 This section outlines the requirements for a statutory demand to a company In particular it states that the demand must relate to a single debt or two or more debts that are due and payable by a company and must specify the total amounts of the debts It further states that the demand is to be accompanied by an affidavit that verifies the existence of the debt that is due and payable Candetti Constructions Pty Ltd v M I Samaras No 1 Pty Ltd In this case a creditor was owed 1 457 935 for crane services nett of amounts already paid The debtor disputed liability for the nett amount but admitted that 308 151 was payable Justice Blue of the Supreme Court of South Australia ruled that as s459E of the Corporations Act does not explicitly contemplate a demand for an undissected portion of a debt as opposed to the debt itself The basis for this decision was that if s459E was interpreted as to allow demand for part of a debt the debtor seeking to have the demand set aside would have to establish a genuine dispute about the existence of the entire debt even though only part of it was in contention Therefore meaning they would not know which part of the debt to dispute Garuda Aviation Pty Ltd v Commonwealth Bank Of Australia In this case the Commonwealth Bank of Australia had entered into a written agreement to provide a loan facility to the limit of USD 27 000 000 to Garuda which was secured by a written chattel mortgage over a Gulfstream Aircraft This facility went into default and at the time this occurred CBA believed they had a debt claim against Garuda for USD 6 896 535 05 In related proceedings between the parties where judgment was pending a genuine dispute had been raised in regards to all but USD 2 099 047 13 Accordingly CBA served a demand for only that amount of the debt as it was expected that a genuine dispute would be raised regarding the balance Master Sanderson of the Supreme Court of Western Australia took the view that a demand for part of a debt is valid as a company who cannot pay part of a debt is presumed to be insolvent so long as the demand is more than the statutory minimum required 2000 However when ruling on this he acknowledged that given the national scheme of the Corporations Act he ought to follow the ruling of Justice Blue in Candetti until it is overruled by a higher court In effect these decisions result in the apparent inability for a creditor to issue any form of demand for payment of a debt if only part of that debt is undisputed Call Aitken Whyte Lawyers for

    Original URL path: http://www.awbrisbanelawyers.com.au/recovering-part-of-a-debt-owned-by-a-company-insolvency-brisbane-lawyers-solicitors.html (2015-11-26)
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  • Setting Aside Default Judgments, Courts, Debt, Brisbane Lawyers, Solicitors
    file a defence within 28 days of service of the statement of claim an explanation for any delay in making the application to set aside the default judgment and a statement showing the nature of the defence that will be relied upon if the debtor is allowed to defend the action The debtor must show a prima facie bona fide defence on the merits The debtor is not required to detail the whole of the evidence going to the defence in the affidavit The affidavit simply requires the nature of the defence to be set out Applications to set aside default judgments are frequently granted This is because the courts prefer cases to be heard and determined on their merits rather than by default That being said the court must be satisfied that there is a defence to be heard and won t set aside a judgment if the defendant can t convince the court that there should be a hearing on the merits Following a successful application the court will require the debtor to file a defence within a fixed period of time Costs If the debtor failed to file a defence the court will generally order the debtor to pay the creditor s cost as a condition to setting aside the default judgment However if the creditor acted improperly to obtain the default judgment the court may require they pay the debtor s costs of the application to set aside the default judgment This may include where the creditor did not serve the statement of claim in accordance with the Rules The court may also order a party to pay any disbursements as well as professional costs Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or

    Original URL path: http://www.awbrisbanelawyers.com.au/setting-aside-default-judgments-courts-debt-brisbane-lawyers-solicitors.html (2015-11-26)
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  • What Is Bankruptcy? Bankrupt, Bankruptcy Law, Lawyers Brisbane
    expiration of the Bankruptcy Notice What Happens During Bankruptcy During the period of bankruptcy the person Cannot act as a company officer Cannot trade under a registered business name without advising people of their bankrupt status Although the person may trade under their own name Must make available to the trustee all of their divisible assets Must not incur credit over an indexed amount without advising the lender of their bankrupt status Will have limitations on overseas travel and have an obligation to surrender their passport Are required to make all books and records of financial statements available including books of associated entities such as companies and trusts What happens if the Bankrupt continues to generate income A bankrupt may and is encouraged to earn income If the amount of income exceeds threshold limits then a contribution must be paid to their estate This liability to pay a contribution continues after the bankruptcy ends and can be enforced by the trustee The Bankrupt s Estate and Property The trustee will administer the bankrupt s estate and control all of the bankrupt s divisible property However some property is not divisible Non divisible property may include Necessary clothing and household items Tools of trade to a particular indexed amount A motor vehicle to an indexed amount Life assurance or endowment policies Certain damages or compensation payments Sentimental property Superannuation payments In some circumstances the trustee may recover property sold before bankruptcy Transactions occurring within five years of the bankruptcy will be examined and if improper undervalued or made for the purpose of avoiding creditors that property may be recovered The trustee may also recover monies from creditors paid as preferential payments six months before the bankruptcy Further any property given or sold to a Family Trust at less than its market value may be recovered by the trustee Where required the trustee can force the sale of joint real property and the trustee s name may be placed on the title deed in place of the bankrupt Powers of the Trustee During the bankruptcy the trustee will Find and protect the assets of the bankrupt Realize the bankrupt s assets Investigate the financial affairs of the bankrupt and any transactions that appear suspicious Make appropriate recoveries Report to creditors Report any offences to ITSA and Distribute surplus funds received to creditors Creditor s rights Following a person s bankruptcy their creditors have a right to prove in the bankrupt estate for a dividend The rights of secured creditors are not affected in relation to valid security Annulment of Bankruptcy It is possible to receive a cancellation of the bankruptcy and the debtor may have their affairs reinstated as if no bankruptcy had occurred An annulment may be obtained by An Order of the Court founded on the basis that the bankruptcy should not have occurred The full payment of the debts of the bankrupt and the administration costs A s 73 proposal is accepted by all creditors Discharge from Bankruptcy Bankruptcy

    Original URL path: http://www.awbrisbanelawyers.com.au/what-is-bankruptcy-law-firm-bankrupt-brisbane-lawyers-solicitors.html (2015-11-26)
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  • Employee Contracts, Failing to Clearly Stipulate Employment Terms, Reasonable Notice on Termination
    contract including a 50 reduction to her bonus The negotiations failed after which Expeditors International terminated the employment contract She was then advised she would receive her salary to the date of termination five weeks pay in lieu of notice as well as any statutory entitlements which amounted to 54 000 The employee claimed that due to Expeditors International s failure to provide a notice period within the employment contract the implied term of reasonable notice considering her position was 12 months Further she claimed that for the purpose of calculating her entitlements on termination her bonus should have been calculated as a part of her salary The Decision The Supreme Court of New South Wales looked to the considerations in Ranking v Marine Powers International Pty Ltd in order to determine the appropriate notice for Ms Ma s situation and determined that 10 months was reasonable notice To make their decision the court considered her age the seniority of her position her reputation within the company the substantial nature of the remuneration package she was receiving prior to her termination and the prospects of her finding another position with similar remuneration and seniority Further the court held that on the construction of her employment contract her salary unequivocally included both the base amount and the bonus amount The court also held that a lack of any provisions in the contract concerning when the bonus payments were to be made indicated that the bonus was linked to performance These conclusions led the court to award 10 months pay in lieu of notice the total amount of her salary up to the date of her termination and the payment of her long service leave on basis that her salary included both the base amount and the bonus amount This came to

    Original URL path: http://www.awbrisbanelawyers.com.au/employee-contracts-failure-clearly-state-termination-agreement-employment-terms.html (2015-11-26)
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  • Employment Law, Employment Contracts – Implied Terms of Trust and Confidence
    Bank of Australia as an executive manager for 27 years before he was made redundant He was advised by the bank that pursuant to his employment contract they would liaise with him in order to find him alternative employment within the company Due to the cancelation of his bank email and voicemail there was a substantial delay in offering Mr Barker redeployment Following the terms of his employment contract due to the delay the bank eventually terminated his employment as he had not been successfully redeployed The Federal Court Decision Mr Barker argued in the Federal Court that an implied duty of mutual trust and confidence existed in his contract and that the banks failure to take positive steps to redeploy him amounted to a breach of this term The Federal Court accepted his argument and awarded him 335 623 57 in damages On appeal the majority of the Full Court of the Federal Court of Australia upheld the decision of the trial judge and followed the position in the United Kingdom to imply a term of mutual trust and confidence into employment contracts in Australia The High Court Decision The High Court overturned the finding of the Full Court of the Federal Court and identified the differences in the history of industrial relations in the United Kingdom and Australia The majority noted that the decision does not prevent implied obligations to act in good faith nor does it forbid implied obligations to cooperate Justice Gageler emphasised that the rule was the product of statutory circumstances in the United Kingdom and for this reason it is not justifiable in Australia Outcome The outcome does not prevent implied terms in employment contracts altogether however it confirms that in Australia there is no implied duty of trust and confidence in employment contracts

    Original URL path: http://www.awbrisbanelawyers.com.au/employment-law-contracts-implied-terms-trust-confidence-brisbane-lawyers-solicitors.html (2015-11-26)
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