JHK Legal Commerical Articles

How Lenders Should Deal with a Defaulting Borrower

Posted By Michael Tourkakes on June 2, 2015
How Lenders Should Deal with a Defaulting Borrower

Watch out for any warning signs. Firstly, a lender needs to spot the early warning signs. These signs include the borrower breaching or being about to breach its financial overdraft limits, or suddenly requesting new facilities or an extended repayment timetable. The borrower may be under increased creditor pressure or subject to litigation, insurance claims or rent reviews.

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The Perils of Mediation in Commercial and Civil Litigation

Posted By Michael Tourkakes on June 1, 2015
The Perils of Mediation in Commercial and Civil Litigation

Mediation is becoming an increasingly popular form of commercial dispute resolution. It is often preferred to litigation upon the basis that it is faster and cheaper. Mediation will also allow underlying commercial relationships to be preserved.

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What happens when a member of a Self Managed Super Fund enters Bankruptcy?[1]

Posted By Sarah Jones on May 2, 2015
What happens when a member of a Self Managed Super Fund enters Bankruptcy?[1]

The number of members of self managed super funds (“SMSFs”) has been growing in recent years; in June 2014 it was 1,011,686, up from 758,589 in June 2009.[2] A large proportion of those members are members of a two-person SMSF (usually, a husband and wife or de facto partners). There are many rules governing the establishment and continuation of SMSFs, and bankruptcy of a member may have important ramifications for the other member(s) of the SMSF, as well as the bankrupt.

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Section 54 – Insurance Contracts Act 1984

Posted By Shan Auliff on May 1, 2015
Section 54 – Insurance Contracts Act 1984

Section 54 – Overview
(i) Operates as shield for insured parties to prevent Insurers from denying claims based on minor breaches of the insurance policy.
(ii) Does not ordinarily grant a right of action to Third Parties – limited usefulness in recovery.

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Viscariello v Macks [2014] SASC 189—New Lessons for Administrators, Liquidators and their Advisers.

Posted By Rebecca Quinton on April 1, 2015
Viscariello v Macks [2014] SASC 189—New Lessons for Administrators, Liquidators and their Advisers.

On 9 December 2014, the Supreme Court of South Australia handed down a decision which has shed light on the standard of conduct required of insolvency administrators, liquidators and their advisors under the Corporation Act 2001 (Cth) (“The Act”).

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Rising from the Ashes – A Brief Overview of Phoenix Activity

Posted By Cassandra Garton on March 2, 2015
Rising from the Ashes – A Brief Overview of Phoenix Activity

Illegal phoenix activity is the deliberate liquidation of a company by director(s) to avoid paying creditors, tax or employee entitlements.

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Directors’ Duties to Creditors

Posted By Caitlyn Selwood on March 1, 2015
Directors’ Duties to Creditors

Company directors must exercise their powers for the benefit of the company and are subject to duties to ensure that this power is exercised in good faith. In times of financial distress, a director’s duty extends to consider the interests of the company’s creditors. This duty has developed throughout the common law, however there still remains a lack of criteria and judicial guidance in its operation. This article will analyse the current position of directors’ duties to creditors in Australia with a focus on the recent case law that has introduced new legal principles and created commercial concern as a result.

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Franchising Code of Conduct

Posted By Brittany Biron on February 2, 2015
Franchising Code of Conduct

On the First of January 2015 the Franchising Code of Conduct that was established by the Trade Practices (Industry Codes—Franchising) Regulations 1998 (Cth) was repealed and replaced by the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 (Cth) (“the Code”). The Code’s purpose was to update outdated provisions and to reflect modern drafting practices and changes in the franchising sector.

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Self representation services in the Federal and Federal Circuit Courts and How They Impact Creditors

Posted By Dylan Trickey on February 1, 2015
Self representation services in the Federal and Federal Circuit Courts and How They Impact Creditors

With the increase in Default Judgments being awarded by state Courts, it has been viewed that an influx of bankruptcy and wind up proceedings in both the Federal and Federal Circuits Courts issued by creditors in attempts to enforce judgments is beginning to occur.

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Insolvent Trading

Posted By Belinda Melton on January 2, 2015
Insolvent Trading

An increasing problem facing many Australian companies in today’s modern society is insolvent trading. It is therefore essential for all directors of companies to be aware of the law associated with insolvent trading. As a preliminary, insolvent trading occurs when a company incurs debts when it is insolvent. For what seems like such a simple statement, the law behind it is quite complex.

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Insolvency

Insolvency

Worried you might lose your business, your livelihood or your home?

If you are the owner or director of a company that cannot meet its financial obligations you might be trading insolvent and you are right to be very concerned.

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What Is Insolvency?

What Is Insolvency?

Insolvency is a term that applies to both companies and to individuals who can no longer meet their financial obligations, however personal insolvency (also known as bankruptcy) only applies to individuals.

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The 7 mistakes people make when they hire an insolvency lawyer

The 7 mistakes people make when they hire an insolvency lawyer

If you’re not sure whether you need to hire an insolvency lawyer or not…it probably means you do.

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