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For general information regarding insolvency matters, refer to the Insolvency practitioners section on ato. Mr Claudio Lamanda, a bankrupt, was prosecuted in the Heidelberg Magistrates Court on 15 February for removing property within 12 months prior to the presentation of the petition which made him bankrupt.
Mr Lamanda became bankrupt on 27 June by virtue of a sequestration order. He also made a false declaration in his Statement of Affairs, failing to declare two personal bank accounts that he had within the previous 12 months, a business account where he and his son were the signatories, as well as two unsecured creditors.
Mr Lamanda pleaded guilty and was convicted on both counts. Magistrate Tregent sentenced Mr Lamanda to perform a 12 month Community Corrections Order, with the condition that he perform hours of unpaid community work, and undergo a mental health assessment and treatment.
Mr Gary Steven Rosenberg of St Ives, New South Wales, was sentenced on 21 February after pleading guilty to an offence of materially contributing to his insolvency by gambling. Mr Rosenberg filed for voluntary bankruptcy in June Between June and June , Mr Rosenberg gambled at various casinos in Australia and New Zealand and participated in online gambling.
Magistrate Atkinson found the offence proven and commented that there needs to be a deterrent. Mr Rosenberg was released on a good behaviour bond for twelve months without conviction. Between 23 September and 24 February , Mr Majeed attempted to travel overseas four times departing from the Sydney Kingsford Smith Airport and on each occasion officers from the Australian Federal Police denied him access to the flight.
He was convicted by Magistrate Atkinson and released on a good behaviour bond for twelve months. The Magistrate commented that general deterrence is important in this matter and that the Bankruptcy Act is important legislation.
Mr Alan Jeffrey George of Bayview, New South Wales, was convicted and sentenced on 21 November for disposing of property within one month prior to becoming bankrupt, with intent to defraud his creditors. He was convicted by Judge Syme to 6 months imprisonment and released on recognizance to be of good behaviour for two years. Mr Vo came under the scrutiny of the Australian Financial Security Authority after it received complaints from two home owners about renovation projects at Noble Park, Victoria in and Wheelers Hill, Victoria in In March , the complainant informed Mr Vo that he no longer wanted him to make the renovations due to his unreliability.
Mr Vo was asked to return the money paid as very little work had been done by that stage. The second complaint related to a concreting job and the construction of a masonry fence. In both instances, Mr Vo failed to disclose to the complainants that he was an undischarged bankrupt. Michael James McCormack of Perth, Western Australia, was convicted in the Perth Magistrates Court on 21 November , and sentenced for two counts of removing property within 12 months of going bankrupt.
Mr McCormack could not provide the Official Trustee with a sufficient explanation about how the funds were spent. Mr Christopher John Currie of Truganina, Victoria, was prosecuted in the Sunshine Magistrates Court on 4 November , for failing to disclose information to his trustee and disposing of property after he was made bankrupt. He declared to his trustee that he owned a Mitsubishi Triton motor vehicle but failed to provide any further information as directed by his trustee.
He also refused to make the vehicle available to be valued. In sentencing, Magistrate MacCullum stated that general deterrence was important in bankruptcy matters. On 19 October , Mr Anel Kurtovic, now of Woodville, South Australia, was convicted and sentenced at the Central Local Court for failing to disclose his bankruptcy to a finance company when he obtained finance to purchase excavating equipment.
Mr Kurtovic did not disclose his bankruptcy to the finance company when he applied for finance, knowing that he was under obligation to do this. Mr Kurtovic pleaded not guilty to the offence but was found guilty by Magistrate Forbes, who convicted him without passing sentence and ordered him to serve a two year good behaviour bond.
The primary judge found that the turbines were subject to a lease under the PPSA which had not become fixtures to the land. The lessee went into voluntary administration. Under section of the PPSA, all unperfected security interests vest in the grantor when a voluntary administrator or liquidator is appointed to the company.
These cases show the need for lessors and other parties to take great care in dealing with their interests under the PPSA. The husband was discharged from bankruptcy and separated from his wife in The parties agreed for the property to be sold and 40 percent of the proceeds to be held until the matter was resolved.
The FCFCA reviewed the history of both phrases — looking at and suite of legislative amendments — and noted that:. The HCA had to consider whether section A of the CA was invalid under the Constitution because it conferred non-judicial power on federal courts and on courts exercising federal jurisdiction. Mr Palmer argued that the power of a court to summon a person for examination under section A was invalid on the grounds that it:. Mr Ferguson adopted those grounds and further argued that the power poses a real risk to the independence and impartiality of the court, and offends the separation of powers.
Kiefel, Keane, Nettle and Gordon JJ held that section A of the CA was not incompatible with, and did not fall outside, the exercise of the judicial power of the Commonwealth.
Their Honours said that the fact gathering or investigation power in section A provides a system of discovery allowing an inquiry to ensure justice is done in potential litigation:. The making of a summons order is a procedure designed to lead to a controversy regarding potential rights and liabilities in possible further litigation.
It is a procedure directed at the future exercise of judicial power, in aid of anticipated adversarial proceedings, analogous to other pre-trial procedures. While the power to examine derived from English Courts of Chancery exercising supervisory jurisdiction, the majority did not consider this as a necessary or appropriate basis to define the power and processes in section A. Their Honours found that provided the conditions in section A were satisfied, a judicially supervised examination was permitted.
In a separate judgment, Gageler J noted that Australian Courts in modern times were accustomed to exercising supervisory jurisdiction over applications by trustees, receivers, provisional liquidators and others responsible for the conduct of insolvency administrations. His Honour also held that the power in section A to examine did not take the court beyond the role of supervising an administration as part of other processes intended to ultimately protect and adjust the rights of companies and their creditors.
The loan was secured by a mortgage over a land owned by Schutara. Mr Psevdos executed the loan agreement as trustee of Orio. In July Mr Psevdos lodged a caveat claiming an equitable interest as mortgagee over the land. CBA did not become aware of the caveat until August This was opposed by Mr Psevdos who argued that he had superior priority because CBA had elected to make its mortgage subject to his caveat. However, CBA did not change its position.
His Honour noted that an enquiry would be relevant where there was a genuine allegation that no debt actually existed or was effected by apparent fraud or collusion.
However, on the facts Charlesworth J found that Mr Psvedos had:. On the 2nd issue, Charlesworth J examined whether Mr Psvedos acted solely in his capacity as trustee for Orio and the general principles governing liability of a trustee. Having done so, His Honour concluded that the terms of the loan agreement were for Mr Psvedos and held that he was personally liable for the debt.
On 9 April the applicant applied to enforce the order. That application succeeded and in early April a section order was made allowing property settlement orders under Part 5A of the WA Family Court Act However, His Honour did not accept this criterion was relevant to determine solvency and rejected her contention about the loans.
The Court therefore concluded that Mr Bond was insolvent when he lodged his petition and it could not be said that it should not have been presented on that basis.
Lucev J then considered whether the petition was lodged to stymie another person in conducting proceedings. After reviewing the case law, His Honour concluded that simply because the petition was lodged on the same day as Ms Beaman applied to enforce a payment order did not mean it was designed to frustrate any other proceedings. The final issue to be decided was whether the petition was an abuse of process. Lucev J noted that Mr Bond was entitled to use the BA to shield himself from further liability or harassment and went on to conclude that:.
If you would like to submit an article for inclusion in the next edition of the PIR, please forward it to one of the following:. Email Created with Sketch. Linkedin Created with Sketch. Untrustworthy advisers AFSA is producing a short video to warn people of unregulated, unlicensed advisers who may target vulnerable people in times of financial crisis and pressure.
The video will be available shortly. This article will discuss some of the key changes to the regulation of trustees, including the Bankruptcy Rules for: Establishing a register of trustees, Imposing industry-wide conditions, Simplifying the standards for registered trustees, and Requiring trustees to provide information to creditors, regulated debtors and committees of inspection, in certain circumstances.
Imposing industry-wide conditions Section of Schedule 2 to the Bankruptcy Act provides that the Bankruptcy Rules may impose industry-wide conditions. Requiring trustees to provide information, in certain circumstances Sections , , and of Schedule 2 to the Bankruptcy Act provide for creditors, individual creditors, regulated debtors, and committees of inspection to request information from the trustee.
Why create rules? Of particular relevance for trustees will be the courses on: Personal insolvency administrations; and Dealing with creditors under the new law Personal insolvency administrations This course will cover changes under the ILRA including Insolvency Practice Rules and transitional provisions , compare new and old requirements and highlight changes to procedure and practice for bankruptcies, controlling trusteeships and personal insolvency agreements.
Ravi-Inder Kaura, Acting Director Insolvency and Trustee Services Trustees realising Strata Title property The inspection programme highlighted what appears to be two issues in how trustees are dealing with residential apartments particularly when the petitioning creditor is the owners corporation.
The Inspector-General has considered the position and is of the view that: The then entitlement to recover an unpaid levy contribution debt was under section 80 of the SSMA The Owners Strata Plan No. In other words it is clear from Dimitriou that to recover contributions and associated legal expenses as a debt an owners corporation must do so all at once and in the same proceeding the section 80 debt.
Non-compliance with a bankruptcy notice may give rise to an act of bankruptcy. The Federal Court Bankruptcy Rules at rule This is made clear by section 51 of the Act which is in the following terms: Subject to section the prosecution of a creditors petition to and including the making of a sequestration order on the petition shall be at the expense of the creditor.
As an order of the Court, its legal effect does not depend on the subjective intention of any of the parties, their solicitors or the trustee appointed. That is, between the Owners Corporation as petitioning creditor and applicant for the sequestration order and the respondent to that application, the bankrupt. Therefore the legal effect of a costs order fixing the costs of the petitioning creditor is binding on the creditor and the trustee.
The petitioning creditor cannot claim any sum in excess of the amount fixed for costs for the creditors petition and the trustee cannot pay any more than the amount so fixed. Section 80 of the SSMA is not and could not be a vehicle for the recovery of any additional costs independently of the fixed costs order. Consequences where there is no fixed costs order made Consequences of excess costs payment The second issue - Trustees engaging the solicitor for the owners corporation to act on the conveyance at exorbitant cost The matter inspected raised another important issue.
Trustees are expected to pay competitive rates for conveyancing costs, by for example, seeking quotes for fixed costs for the conveyance. Superannuation Guarantee Charge - obligations Employers are required to provide a prescribed minimum level of superannuation support for employees in a particular calendar quarter by making contributions to a superannuation scheme for the benefit of the employee. For bankruptcy trustees: The information can be submitted in a digital format via the Business Portal - Mail function.
Interacting with the ATO electronically We continue to see an increase in secure messages being received using the ATO Business Portal functionality — no doubt because this has proven to be a faster and more efficient way to have your queries resolved. More information For general information regarding insolvency matters, refer to the Insolvency practitioners section on ato.
Mr Majeed became bankrupt on 9 November by order of a court. Mr George endorsed the cheque and the funds were paid to his wife. McCormack WA — Bankrupt convicted of two counts of removing property Michael James McCormack of Perth, Western Australia, was convicted in the Perth Magistrates Court on 21 November , and sentenced for two counts of removing property within 12 months of going bankrupt.
Currie Vic — Bankrupt sells asset Mr Christopher John Currie of Truganina, Victoria, was prosecuted in the Sunshine Magistrates Court on 4 November , for failing to disclose information to his trustee and disposing of property after he was made bankrupt. On 3 April , Mr Currie was made bankrupt by order of the court. Due to his non-cooperation, his bankruptcy was extended until 23 May Mr Currie pleaded guilty to the charges.
The matter was prosecuted by the Commonwealth Director of Public Prosecutions. Kurtovic NSW — Bankrupt excavator found guilty of an offence under the Bankruptcy Act On 19 October , Mr Anel Kurtovic, now of Woodville, South Australia, was convicted and sentenced at the Central Local Court for failing to disclose his bankruptcy to a finance company when he obtained finance to purchase excavating equipment.
Mr Kurtovic became bankrupt on 22 February by order of a court. The appeal was therefore dismissed. Legal issue s The court had to consider whether: the purported registration by the lessor was effective despite the defect in registration the lessor could claim relief by an extension of time to perfect its defective registration vesting of the leased equipment in the lessor amounted to acquisition on unjust terms.
Key points These cases show the need for lessors and other parties to take great care in dealing with their interests under the PPSA. Some key lessons are that: Failure to register or properly register can render security interests unperfected and therefore ineffective.
In the event of voluntary administration, bankruptcy or liquidation, any unperfected security interest automatically vests in the insolvent grantor under section of the PPSA. Legal issue s The HCA had to consider whether section A of the CA was invalid under the Constitution because it conferred non-judicial power on federal courts and on courts exercising federal jurisdiction. Their Honours said that the fact gathering or investigation power in section A provides a system of discovery allowing an inquiry to ensure justice is done in potential litigation: The making of a summons order is a procedure designed to lead to a controversy regarding potential rights and liabilities in possible further litigation.
The proceedings were consequently dismissed. Psevdos v Commonwealth Bank of Australia No. However, on the facts Charlesworth J found that Mr Psvedos had: failed to argue the principles to establish fraud as he did not present sufficient supporting evidence; and limited his own position in the SC proceedings by abandoning his defence over a superior priority.
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