ATO recovery powers – are your house sale proceeds at risk?

A garnishee order is a form of enforcement action that can be used for the recovery of debts. It can be served on a third party who owes money to the debtor, directing the third party to pay that money to the entity that issued the garnishee notice, rather than the debtor.

Ordinarily, a court-ordered judgment is required before a garnishee order can be made. However, the ATO can issue a garnishee notice in relation to outstanding tax debts without a court judgment being entered, against any person or business who owes money to the tax debtor or holds money on their behalf. (more…)

Avoiding direct inconsistency between the Corporations Act and State/Territory laws

In the decision of Linc Energy Ltd (In Liq) [2017] QSC 053, Justice Jackson found that the pre-existing Queensland environmental laws have priority over inconsistent Commonwealth Corporations Act disclaimer provisions.

The matter involved the liquidator’s right under the Corporations Act to disclaim onerous property pursuant to sections 568 and 568D of the Corporations Act, and the pre-existing State-based environmental obligations imposed upon companies. (more…)

Liquidation of Company Trusts

The judgment of Independent Contractor Services (Aust) Pty Limited ACN 119 186 971 (in liquidation) (No 2) [2016] NSWSC 106, delivered on 23 February 2016, held that a liquidator appointed to a company, which acts solely as the corporate trustee of a trust, must:

1. approach the Court to obtain approval of the liquidator’s remuneration and the liquidator’s disbursements (which the liquidator has a right of indemnity for in priority to trust creditor claims); and

2. distribute trust assets to creditors equally, including employee claims, with no special priority as set out in the statutory order of priority codified by section 556 of the Corporations Act 2001 (Cth).

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Agreements – A first among equals

We recently advised a client on the importance of entering into written, enforceable agreements with its customers.

Our international client had supplied stock over a number of years to an Australian-based customer.  However, our client’s written supply agreement was entered into with a ‘group of companies’, described here in generic terms as follows (the ABC Group) and not with an actual legal entity, being either an individual or a company with an Australian Company Number (ACN). (more…)