Yesterday PM reported on the acquittal of Costas Vaxevanis for breaches of Greek’s privacy laws.

The transcript of the report relevantly provides:

SHANE MCLEOD: A Greek investigative journalist accused of breaching privacy for publishing the names of more than 2,000 of his compatriots with Swiss bank accounts has been acquitted.

The case has highlighted the role of tax evasion as part of the nation’s debt crisis.

The journalist, Costas Vaxevanis, was facing a possible jail term if Read the rest of this entry »

Re Willmott Forests Limited [2012] VSCA 202 is a very important decision in insolvency jurisprudence. The Victorian Court of Appeal upheld an appeal from a finding of a trial judge that the disclaimer of a lease agreement by the liquidator did not have the effect of extinguishing the leasehold interests in land [19]. In doing so the court undertook a detailed analysis of section 568 of the Corporations Act.

FACTS

The majority defined the question as, at [1]:

whether a leasehold interest in land is extinguished by the disclaimer of the lease agreement by the liquidator of the lessor, pursuant to s 568(1) of the Corporations Act 2001 (Cth) (‘the Act’)

Willmott Forests Ltd (“WFL”) owned leases from third parties freehold properties. It entered into 25 year leases. The liquidators of WFL sought to sell the interest in the properties unencumbered by the leases and seek to disclaim the lease agreement.  They applied to the court for approval of such disclaimers [2]. Sale contracts for the sale of the land contained conditions precedent to their completion of the liquidators obtaining orders and directions from a court authorising the liquidators, at [9]:

a) to exercise the powers to terminate, relinquish or surrender the project documents of the registered MIS and Professional Investor MIS; and

(b) to disclaim the project documents of the contractual and partnership MIS as onerous pursuant to s 568(1) of the Act.

The liquidators made application under section 511 of the Act and 477 (2B) for approval of their entry into contracts.

 DECISION

Warren CJ and Sifris AJA

Regarding the operation of section 568 their honours stated:

1. liquidators have the power to disclaim property of a company in liquidation or contracts entered into by the company [15]
2. it is to enable a liquidator to Read the rest of this entry »

The Personal Liability for Corporate Fault Bill passed the Houe of Representatives today. The bills web page is found here.

The Bill arose from the Council of Australian Governments’ National Partnership Agreement to Deliver a Seamless National Economy whose aim is to remove regulatory burdens on directors and corporate officers that cannot be justified on public policy grounds, and to minimise inconsistency between Australian jurisdictions in the application of personal liability for corporate fault in government laws.

The relevant COAG Principles are

• Where a corporation contravenes a statutory requirement, the corporation should be held liable in the first instance.
• Directors should not be liable for corporate fault as a matter of course or by blanket imposition of liability across an entire Act.
• A ‘designated officer’ approach to liability is not suitable for general application.
• The imposition of personal criminal liability on a director for the misconduct of a corporation should be confined to situations where: Read the rest of this entry »

The Full Bench of the Federal Court in Georges v Seaborn International Pty Ltd (Trustee), in the matter of Sonray Capital Markets Pty Ltd (in liq) [2012] FCAFC 140 considered the right of the liquidator to recover proceeds of shares the purposes of pooling and distribution to creditors.

FACTS

Sonray was the holder of the Australian financial services licence from 4 May 2005 until it went into administration on 22 June 2010 [87]. It provided access to trading platforms made available by third parties. Clients deposited money with Sonray, which was held in accounts and subject to statutory trust under the Corporations Act [88]. It had 18 segregated accounts which were used to receive deposits in respect of margin calls, proposed trades and the return of funds. In these accounts clients’ funds were co-mingled with funds from other clients [90] to the point where the trial judge found that the funds were so thoroughly mixed as to be almost impossible to ascertain entitlements to each of the segregated accounts [93]. Efax, the trustee of a family trust, entered into a written agreement in 2009 with Sonray regarding its trading activities.  In April 2010 Efax instructed Sonray to purchase 78,000 shares in BHP Billiton Ltd (“BHP”) [5] for $3 million [6], which it did through Saxo Bank (“Saxo”), one of its trading platforms. Efax’s funding for the purchase was deposited into a Sonray accounted which was subject to numerous defalcations.  The purchase price for the shares however was not paid out of a tainted account but rather by Saxo using its own money or by way of credit arrangements.  Sonray debited Efax’s ledger account with the purchase price of the BHP shares.

The Liquidators seek a direction to allow them to pool shares purchased on instructions by Efax with proceeds attributable to all other Sonray clients which would then be distributed amongst all of the clients [8].

 The trial judge held that Efax is entitled to resist the claim for pooling on the ground that it is entitled to the BHP shares in specie [9].

DECISION

The Majority upheld the appeal by a 2-1 majority.

THE MAJORITY

Jacobsen J

His Honour commenced his analysis by Read the rest of this entry »

In Sevior v Morgan [2012] VSC 480 Sifris J terminated a winding up  under section 482(1) of the Corporations Act 2001 (the “Act”). His Honour undertook a detailed a detailed consideration of public interest and commercial morality in the exercise of the court’s discretion.

FACTS

The company was incorporated on 7 September 1994 to operate the electrical business of Mr Sevior (“Sevior”).  It operated until 25 September 2009 after which time it entered into a license deed with two other companies and then ceased trading [5].  The liquidator, Mr Morgan, raised concerns about alleged Phoenix activity. On 11 December 2009 the company was placed into liquidation [6]. More than two years later Sevior proposed a deed of company arrangement [8].  In his report dated 11 April 2012, under section 439(A) of the Act, Morgan stated:

– there is a potential preference claim against the Deputy Commissioner of Taxation in the amount of $191,415;

– there is a potential claim against Mr Sevior in respect of director related transactions in the amount of $115,923;

– there is a possible claim against Mr Sevior for trading whilst insolvent in the amount of $283,153;

– Mr Sevior may have breached his duties as a director of the Company in various respects; and

– Mr Sevior may have engaged in alleged phoenix activity.

While Morgan referred his concerns about breaches of duty in Phoenix activity to ASIC it took no action and did not oppose the application. Sevior swore an affidavit that the creditors of the company had been paid and had accounted for the assets that he is assigned to another company. He also took steps to deal with the breaches of directors duties and alleged Phoenix activity [11].

DECISION

His Honour reviewed the authorities in summarising the principles applicable in terminating a winding up under section 482 (1) of the Act, which are notably:

1. the solvency of the company Read the rest of this entry »

In Drone journalism set for takeoff – once they’re permitted to use our airspace the Guardian reports on the impending use of drones in journalism.

It provides:

It Read the rest of this entry »

In Investigation Report 2773 ACMA considered a complaint relating to a breach of Clauses 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

FACTS

During the Ray Hadley Morning Show  on 25 November 2011 Ray Hadley announced the complainant’s name and address on air.

ACMA investigated the complaint under Sections 148 and 149 of the Broadcasting Services Act 1992 and the licensee’s compliance with clauses 2.3(d) [privacy] Read the rest of this entry »

Yesterday’s Law Report on Radio National covered the mooted statutory right of privacy.  It is found here.

The transcript of the program, with my annotations, provides:

In ACN 079 638 501 Pty Ltd (in liq) (recs & mgrs apptd) v Pattison & Anor [2012] VSC 445 Justice Ferguson considered whether work in progress was covered by a charge given by company.

FACTS

Mr Paul Pattison (“Pattison”),  a qualified chartered accountant and registered liquidator and trustee in bankruptcy established and was sole director and secretary of the Plaintiff. Until April 2010 he conducted his insolvency practice through the Plaintiff [1]. In November 2006 the Plaintiff charged its assets in favour of bank of Western Australia Ltd (“BankWest”). In 2010 BankWest appointed receivers and managers over the assets of the Plaintiff under the charge [2] & [10] – [11].

The issue in the proceeding was whether the work in progress recorded in the books of the Plaintiff, being time spent by Pattison working on insolvency administrations was an asset caught by the charge [3]. Pattison contended that his appointments were personal to him and the Plaintiff provided services to him in connection with those appointments [4]. The receivers contended that all work performed by him pursuant to his appointments as liquidator, deed administrator or trustee in bankruptcy was performed as an employee of the Plaintiff and his work in progress was an asset of the Plaintiff.

DECISION

Her Honour found:

1. the Plaintiff would raise invoices  for fees and disbursements payable [7]. The time spent by Pattison was included in the Plaintiff”s invoice on a separate charge made by him personally;
2. cheques would be paid to Pattison and he would endorse them as payable to the Plaintiff. Payment was made into the company’s bank account [7]; and
3. the Plaintiff’s payslips evidence fortnightly wages payable to Pattison as an employee although this was disputed in part [8].

Ferguson J framed the question as, at [15]:

..the real question is as to the relationship between Mr Pattison and the Company and the effect (if any) that that had on ownership of the work in progress.

The fact that Pattison had certain obligations arising Read the rest of this entry »

In New Twist in Greek Tax Saga the Wall Street Journal reports on a disclosure by a journalist, Costas Vaxevanis, of private financial details of several thousand Greeks with Swiss Bank Accounts and his subsequent arrest.  The story provides:

 ATHENS—Greek authorities arrested a celebrated investigative journalist Sunday after his magazine disclosed the names of several thousand Greeks with Swiss bank accounts, including members of the country’s political and business elite, a development that comes as an embarrassment to the government and will put more pressure on it to crack down on the country’s chronic tax evasion.

The arrest of the publisher of Hot Doc magazine is the latest bizarre twist to a weekslong saga that has gripped the country and concerns over the attempts of the Greek government to track down alleged tax evaders from a list of names French authorities provided to them.

The publisher, Costas Vaxevanis, was later released Read the rest of this entry »