Dispute Resolution & Litigation

Where The Better Equity Lies: A Lesson In Registering Interests

This month, the Victorian Supreme Court took into consideration the conduct of lenders to determine which competing interest should have priority when there are only limited funds available to split between parties.

The Court found that lenders must act with diligence to register their security interests to ensure that they are protected against claims of third parties or risk losing out financially.

Misleading And Deceptive Advertising: Avoiding The Headache

The Federal Court decision against the manufacturer of Nurofen serves as a reminder of advertiser’s obligations when making claims about their products. The decision handed down in January 2018 provides guidance about what a proper scientific basis is to support a representation made in an advertisement. A proper basis is vital in order to avoid potential liability arising out of the operation of the misleading and deceptive conduct provision under the Australian Consumer Law for those who get it wrong.

Assignment Of Liquidator’s Right To Sue: Considerations For Liquidators And Assignees

On 1 March 2017, a significant change was made to the Corporations Act 2001 (Act) involving a liquidator’s powers to sue various parties.  This change was the introduction of a new provision into section 100-5 in Schedule 2 of the Act.  It inconspicuously sits under “Other Matters” in the Schedule and permits a liquidator to assign actions to others, which historically only a liquidator could bring.

INSOLVENT TRADING AND RELATED ENTITIES AS LAST CREDITOR PRIORITY

The recent case of Perrine v Carrello [2017] WASCA 151 demonstrates that flexible payment arrangements between related entities may still be considered debts and that if this debt is incurred while the company is insolvent, it may constitute insolvent trading, rendering directors personally liable for the debt. The Court not only ordered the directors to repay to the company the losses suffered but also said the related entities would not be entitled to any distribution in the liquidation until all other creditors had been paid.