A collection of news and insights about our firm and developments in the law, finance and insolvency industries

  • deed

    What is the difference between a deed and an agreement?

    A deed and an agreement are two types of legal instruments that are sometimes used interchangeably. However, in fact, they are two very different species and their incorrect use may have adverse consequences on certain transactions. A deed is an instrument that must be “signed, sealed and delivered”, in writing and gives the strongest indication […]

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  • winding up application

    Applications to wind up a company in insolvency

    If a company is presumed to be insolvent under section 459C of the Corporations Act 2001 (Cth) (Act) a creditor can apply to the Federal or Supreme Court to wind up the company. Applications are made under section 459P of the Act and the Court has the power to wind up a company in insolvency […]

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  • insolvency

    What is the legal meaning of Insolvency?

    Insolvency is the term that is used to describe the position of a company when it is unable to pay its debts as they become due and payable (section 95A of the Corporations Act 2001 (Cth)). It is interpreted by the Courts using what is known as the “cash-flow test”. If directors of a company […]

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  • statutory demand

    Creditor’s statutory demand for payment of debt

    Abstract The principal ground that is available to a creditor to make an application to wind up a company in insolvency is that the company is insolvent. The Commonwealth government legislated to incorporate into the Corporations Act 2001 (Cth) presumptions of company insolvency upon the occurrence of particular events. The most widely utilised and effective event to prove company […]

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  • insolvent trading claim

    How does a liquidator decide whether to commence an insolvent trading claim?

    Primer for directors of small-to-medium enterprises The simple answer is that the likelihood of an insolvent trading claim being commenced is quite low. The liquidator needs to be well funded and have a potential defendant who is also well funded. The empirical evidence is amazing because it shows that very few cases are actually run […]

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  • safe harbour

    Interview on the safe harbour from insolvent trading

    In September 2017 Australia’s insolvent trading laws were significantly watered down by the introduction of a new safe harbour for directors. Ben Sewell of Sewell & Kettle Lawyers explains the significance of the new law. Discussion Includes The new safe harbour provisions The prohibition on insolvent trading Implementing a plan The hurdles to obtaining the […]

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