Key PPSA concepts for Businesses

Key PPSA concepts for Businesses

In Australia, security over personal property is managed by the provisions of the Personal Property Securities Act 2009 (Cth) (PPSA). The PPSA provides the framework for registration of legal rights known as “security interests” in various types of personal property on a national register, the Personal Property Securities Register (PPSR). All kinds of entities including individuals, partnerships, companies and trusts may provide security interests to another party.

This purpose of this article is to provide an overview of the key PPSA concepts that businesses and anyone transacting on a regular basis need to be aware of. It covers:

  1. The notion of Personal property and what it encompasses;
  2. What a security interest is;
  3. How someone gives or receives a security interest;
  4. Some of the key terms used in the PPSA;
  5. When someone holding a security interest can (generally) enforce it.
  1. What is personal property?

‘Personal property’ is any property that is not ‘real property’ (being land or interests in land such as a lease). Personal property includes tangible items (items you can pick up, such a book) and intangible items (items that exist but do not have a physical form, such as a website).

General examples of personal property include motor vehicles, household goods, inventory, and intellectual property.  In dealing with personal property, it is important to note that the PPSA does not apply to ‘fixtures’. A item of personal property will become a fixture if it is attached to the land and is unable to be easily moved. As a result, it will not have a security interest apply to it.

By way of simple explanation:

  •  A block of land or the house built on that land is not personal property and the PPSA does not apply.
  • The car parked in the driveway of the house is personal property and the PPSA does apply.
  • The BBQ out the back of the house is personal property and the PPSA applies. However, the owner of the house decides to cement the BBQ into the ground, which on completion, makes it a fixture. The PPSA will then not apply to the BBQ after it is cemented as it has become attached to the land.
  1. Security Interests – what are they?

A ‘security interest’ is an interest in personal property arising out of a transaction which secures the payment or performance of an obligation. There are many examples of security interests – hire purchase agreements, leases of goods (such as motor vehicle leases), retention of title clauses (where a seller owns the goods until the goods are paid for even if they have been delivered) and where a person grants another person/entity a security interest as evidence of their intention to pay – or put another way, provides security for the future performance of their promise.

The PPSA also provides automatic (or deemed) security interests where the transactions are: transfers of account and chattel papers; the commercial consignment of goods and in certain cases, leases and bailments.

These automatic security interests occur irrespective of obligations to be performed or money to be paid.

So how does this work practically?

  • Jane decides to enter into a contract with John.
  • John agrees to supply Jane office supplies with weekly delivery of the ordered office supplies but Jane has fourteen days to pay the invoices.
  • John includes a clause in his contract that provides him with a “security interest” in Jane’s personal property.
  • Jane fails to pay a $5,000.00 invoice issued.
  • John can rely on this security interest to seek payment of that money from Jane’s personal property, for example, by the sale of furniture.  NB. This example doesn’t explain the whole process and as we go along you will see that there are other steps John must do but it does show how security interests arise in commercial settings.
  1. Key definitions:

The person providing the security interest as security for their obligation(s) is called the “Grantor”. The person who receives the legal rights in the personal property (the security interest) is called the “Secured Party”.

4. A security interest is granted – now what?

Merely giving the security interest is not enough to afford protection to the secured party – the secured party must be able to enforce it against the personal property by showing that the security interest has attached.

The secured party (remember, the person receiving the rights) must show:

  1. the grantor has rights in the personal property (for example, is the owner) or has the power to transfer rights in the personal property to the secured party (for example, a trustee of a trust owning the personal property);
  2. value has been given for the security interest (for example, the secured party has provided the grantor with a loan) or the grantor does an act by which the security interest arises (one of the deemed security interests we mentioned above).

If the secured party can establish these two requirements, then it has an enforceable security interest as against the grantor’s personal property.

However, without registering its interest on the PPSR the secured party may lose its rank among the secured creditors entitled to have access to the grantor’s personal property. It is imperative that on establishing a security interest, that it is registered to:

  1. establish the secured party’s position among other creditors (preferably first ranking if there are no other registered interests) to access the personal property; and
  2. enforce the personal property against the interests of third parties (discussed next).
  1. Enforcement of Security Interest against third parties

The secured party must then seek to show that the security interest is enforceable against a third party who now has possession or ownership.

A simple example of where this might happen is if a painting has formed part of the secured personal property.

The grantor gives or sells the painting to their friend. The secured party cannot seek the personal property from the grantor and instead must now show it has the right to seek it from the third party friend.

For a security interest to be enforced against a third party, the secured party must show:

  1. the secured party has possession of the property; or
  2. the secured party has perfected the security interest by control (this involves showing that the secured party has done everything it is capable of doing to secure its interest in the personal property – generally by registration on the Personal Property Securities Register or if the secured party has control or possession of the personal property).

In addition, the secured party must also show that there was a security agreement (that is an agreement for the transaction), evidenced in writing between the grantor and the secured party that is:

  • signed or adopted by the grantor (by act or omission); and
  • which contains a description of the collateral or a statement that a security interest is taken in all of the grantor’s present and after-acquired property.

So, taking the above example of the painting:

  • unless the painting was specifically mentioned in the agreement between the secured party and the grantor as being part of the personal property (or the agreement secured all present and after acquired property of the grantor), the secured party is unable to obtain the painting from the third party.
  • if it was included in the agreement, the secured party could require the third party to surrender the painting.

The PPSA is a complex piece of legislation and it is noted that this article is written by way of general comment and any reader wishing to act on information contained in this article should first approach their legal professional advisor for properly considered professional advice which takes into account the reader’s specific situation.

Belinda Pinnow – Senior Associate



Elements and Benefits of the Offer of Compromise

The Calderbank Offer has long been a handy tool in the litigators tool kit. However, in recent times the Offer of Compromise has provided practitioners with an alternative approach to settlement of proceedings. This article aims to examine the elements of an Offer of Compromise and briefly look at the benefits over a Calderbank Offer in Victoria.

The Offer of Compromise:

After the update to provisions relating to Offers of Compromise under the Magistrates’ Court Civil Procedure Rules 2010 (VIC) (“the Rules”) pursuant to the Magistrates Court General and Civil Procedure (Offers of Compromise Amendments) Rules 2014 (VIC); the rules across Victoria’s state Courts relating to Offers of Compromise essentially provide consistent requirements for offers of compromise.

Using the example of the Rules the necessary drafting requirements for an Offer of Compromise under Order 26 are as follows:

  1. The offer must in writing and prepared in accordance with Rules 27.02 to 27.04; and contain a statement to the effect that it is served in accordance with this Order[1]; and
  1. That the offer is inclusive of costs or that costs are to be paid or received in addition to the offer[2];

As for the timing, an Offer of Compromise can be made at any time before an order is made by the Court.  A party is also able to choose the time limit for acceptance of an offer; however, the compliance period cannot be less than 7 days after service.

Most notably, the Rules provide very specific consequences should an Offer of Compromise not be accepted. Using the example of a Plaintiff issuing an Offer of Compromise for the recovery of funds, under the Rules, if a Plaintiff makes an Offer of Compromise, the Defendant does not accept, and the Plaintiff obtains an outcome that is not less favourable than the offer, then, unless the Court orders otherwise the Plaintiff is entitled to an additional 25% of costs on top of the fixed scale costs for those costs incurred after 11.00am on the second business day after the offer was served..[3]

The Rules also provide that acceptance of an offer may be withdrawn in the event any settlement sum is not paid within 30 days aft4er acceptance on the order and the Court gives leave to do so[4] (28 days pursuant to the County Court Civil Procedure Rules[5] and Supreme Court (General Civil Procedure) Rules[6]). In the event that a party is required to seek leave from the Court, at the time of the application they may also seek leave to restore (as nearly as practicable) the parties to their original positions prior to the acceptance and for further conduct of the proceedings.[7]

It is also worth noting that the Offer of Compromise is not restricted to Plaintiffs. Whilst the focus of the above has been based on the example of a Plaintiff making an Offer of Compromise, in the event a Plaintiff fails to accept a Defendant’s offer unless the Court orders otherwise, and the Defendant receives an order in its favour or the Plaintiff’s claim is dismissed, then they will be entitled to the same 25% increase on its scale costs as referred to above from 11.00am on the second business day after the offer was served.[8]

Benefit of Offer of Compromise over Calderbank Offer:

Whilst based on similar principles as the Calderbank Offer, the Offer of Compromise provides practitioners the luxury of clear formalities and entitlements as to costs. Each of the steps provided for by the Rules (and those contained in the County Court Rules and Supreme Court Rules) provide a clear direction to practitioners as to how parties are to make an Offer of Compromise and the consequence of failure to comply.

In comparison, if a party were to use an effective Calderbank Offer, and that party was successful, it may be difficult for practitioners to give their client a clear indication of the amount of costs the Court may award as reference has to be made to case law The Victorian Courts however have provided some guidance in the recent decision in Oliver Hume (Vic) Pty Ltd v Santa Monica (Aust) Pty Ltd (No 2)[9]

In this matter, His Honour Woodward J awarded the Plaintiff partial indemnity costs and provided practitioners with a reminder as to how a well drafted Calderbank Offer can still be an effective tool in litigation.

His Honour determined the second offer from the Plaintiff represented a genuine compromise of the Plaintiff’s claim, and was also satisfied that the offer was expressed in clear terms and unequivocally foreshadowed an application for indemnity costs if the Defendant rejected the offer[10].

His Honour determined that the Defendant acted unreasonably by not accepting the Plaintiff’s offer. Despite the Plaintiffs offer being made close to trial, His Honour determined that given the matter turned on a question of fact, and that the Defendant deviated from its initial pleadings at the trial, the Defendant’s acted unreasonably in not accepting the offer[11].

The decision demonstrates that if a party can comply with the basic principles of a Calderbank Offer, it can still be an effective tool for a practitioner in attempting to claim costs on an indemnity basis.


Despite a wealth of case law regarding Calderbank Offers, based on the rules of each of the Victorian state jurisdictions, the Offer of Compromise correctly drafted in accordance with the rules of Court offers a party greater surety as to costs in the event an offer goes unaccepted and they obtain a favourable decision.

Our suggestions to clients engaged in litigation (pending what stage a matter is at) is to proceed with issuing an Offer of Compromise on the basis we can provide clients with a clearer indication what their entitlements would be in the event they obtain a better outcome than that proposed by the offer.

That being said, the Calderbank Offer has not been made redundant, and still provides parties with a handy tool pre-trial when deployed properly, particularly when there is not the luxury of the time required under the Rules.

Dylan Trickey




[1] Magistrates’ Court General Civil Procedure Rules 2010 (VIC) r. 26.02(3)

[2] r 26.02(4)

[3] r 26.08(2)(a) and (b)

[4] r26.07(1)

[5] County Court Civil Procedure Rules 2008 (VIC) r. 26.03.1

[6] Supreme Court (General Civil Procedure) Rules 2005 (VIC) r.26.03.1

[7] Magistrates’ Court General Civil Procedure Rules 2010 (VIC) r. 26.07

[8] r. 26.08(4)(a) and (b)

[9] Oliver Hume (Vic) Pty Ltd v Santa Monica (Aust) Pty Ltd (No 2) [2017] VCC 1239

[10] Ibid at para 6

[11] Ibid at para 10

Extension of Time for Liquidators to bring Proceedings


The Corporations Act 2001 (Cth) (the “Act”), places time limits on when liquidators can bring voidable transaction proceedings.  However, it can be difficult for liquidators to always comply with the time limits in place, particularly where they are dealing with large and complicated liquidations and extra time is required to make investigations into the company’s books and records to identify all creditors that may need to be pursued for voidable transaction claims.  Therefore, there are circumstances where liquidators may apply to the Court to have the time limits specified under the Act extended.

The Legislation:

Pursuant to section 588FF(1) of the Act, a liquidator may apply to the Court for orders relating to voidable transactions. An important date with respect to voidable transactions is the relation back date.  The relation back date is the date on which the liquidation commenced, which can be any of the following:

  1. In the case of voluntary administration, the day in which the administrators were first appointed;
  2. In the case of an order being made by the Court, the day in which the wind up application was filed with the Court; and
  3. In the case of a creditors’ voluntary winding up, the date of the resolution to wind up the company.

Section 588FF(3)(a) of the Act provides the following:

3) An application under subsection (1) may only be made:

(a) during the period beginning on the relation-back day and ending:

(i)  3 years after the relation-back day; or

(ii)  12 months after the first appointment of a liquidator in relation to the winding up of the company;

                            whichever is the later; or

(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.”

Therefore, if the liquidator needs to bring proceedings more than three years after the relation back date, the liquidator will be required to make an application to the Court seeking an extension of time before the three year period has lapsed pursuant to Section 588FF(3)(b) of the Act.

Case Law:

There have been a number of important decisions made where the Court has used its discretion to make an order extending the time for the liquidator to bring voidable transaction proceedings.  Two important High Court decisions were made in the cases of Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10 (“Fortress Credit Corporation”) and Grant Samuel Corporate Finance Pty Limited v Fletcher; JP Morgan Chase Bank, National Association v Fletcher [2015] HCA 8 (“Grant Samuel”).

Fortress Credit Corporation

In the case of Fortress Credit Corporation, the High Court had to make a decision on whether an order for an extension of time could be granted where the liquidator had not identified the transactions alleged to be voidable at the time of the order.  These types of orders are commonly referred to as shelf orders.

In coming to a decision, the Court accepted that there are certain circumstances where liquidators may find it extremely difficult to complete their investigations and identify voidable transactions within the time allowed under Section 588FF(3)(a) of the Act.  Further, the High Court recognised that Section 588FF(3)(b) of the Act confers “a discretion on the court to mitigate, in an appropriate case, the rigours of the time limits imposed by [s 588FF(3)(a)]…[1]

The decision in Fortress Credit Corporation shows that the Court is exercising its discretion when granting an extension of time.  This is because there are often a number of factors the court must try and balance (such as public policy factors), and decisions will be reached on a case by case basis.

Grant Samuel

In the case of Grant Samuel, the liquidators were successful in their application for an extension of time under section 588FF(3)(b).  After the limitation period expired, the liquidators then applied again for a further extension of time (“the second order”).  The New South Wales Supreme Court granted the second order, allowing the liquidator a further six months to commence proceedings.

The appellants applied to set aside the second order, however were unsuccessful before the Court of Appeal.

When the matter went to the High Court, the liquidators argued that the provisions of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) allowed the second order to be made.  However, the High Court held that the UCPR could not be relied upon to extend the time to commence proceedings.  This is because relying on the UCPR would give preference to the New South Wales legislation rather than the Commonwealth legislation.

The decision of the High Court in Samuel Grant reinforces that further extension applications must be sought before the limitation period expires.  This is because bringing an application within the time required under the Act is a precondition, and while the Act gives the Court power to vary the time period under section 588FF(3)(b), the High Court has stated that this power cannot be supplemented or varied by rules of procedure of the Court to which an application for extension of time is made.


Where liquidators are dealing with large and complicated liquidations, extra time may be required for them to complete their investigations before they are able to proceed with a voidable transaction claim.

While section 588FF(3)(b) of the Act allows liquidators to make applications to the Court to extend the time to commence proceedings, liquidators must still be mindful that they must have a sufficient explanation as to why an order to extend the time to commence proceedings is required.  Further, any application for an extension of time must be made within the time limits provided under section 588FF(3)(a) of the Act.

If you require further information about extensions of time for a liquidator to bring proceedings or require assistance to make an application to the Court seeking an extension of time, JHK Legal are ready, willing and able to provide assistance.

[1] Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10 at [24]

Belinda Melton – Lawyer




A new labour hire licensing scheme will commence operation in 2018 pursuant to the Labour Hire Licensing Act 2017 (Qld) (‘the Act’). The scheme will apply to all labour hire providers operating in Queensland and will ban business from entering into labour hire arrangements with unlicensed providers. Labour hire providers will need to obtain a yearly, non-transferrable licence, the application and renewal fees for which will range from $1,000 to $5,000.

To read the whole Newsletter please click on the link below.


Case Summary – Kite v Mooney, in the matter of Mooney’s Contractors Pty Ltd (in liq) (No 2) [2017] FCA 653

The Federal Court of Australia has recently handed down a judgment in the case of Kite v Mooney, in the matter of Mooney’s Contractors Pty Ltd (in liq) (No 2) [2017] FCA 653 with respect to providing judicial advice to insolvency practitioners where they are appointed to an insolvent company which is the corporate trustee of a trading trust.

The Case

Robert Kite and Mark Hutchins were:

  1. the joint and several voluntary administrators of the Company from 27 April 2015 to 7 July 2016;
  2. the receivers and managers of certain assets held by the Company as trustees for the Mooney Family Trust (‘Trust’) from 29 July 2016; and
  3. appointed the liquidators of the Mooney’s Contractors Pty Ltd (in liquidation) (‘the Company’) from 7 July 2017.

The Federal Court hearing before Justice Markovic was an application made by Messers Kite and Hutchins for judicial advice in relation to various aspects of the ongoing administration of the assets of the Company as well as seeking declaration and orders over the Trust assets.

Messers Kite and Hutchins obtained most of the relief sought in the originating process but for a direction that they would be justified in paying employee entitlements in accordance with the priorities set out in s556(1) of the Corporations Act.


Markovic J concluded that “it is clear that the Company, which was incorporated on the same day that the Trust was settled, operated solely as trustee of the Trust.”[1] Further the Company ceased to be trustee of the Trust on the appointment of Messers Kite and Hutchins as administrators, however “remains a bare trustee and may still hold the assets of the Trust, but its duties, rights and power are limited to protecting the Trust assets. As bare trustee, the Company retains its right of indemnity or exoneration and its lien over the asset of the Trust.”[2] Further Markovic J declared that for debts incurred prior to 27 April 2015 (when the administrators were appointed), the Company has a right of indemnity from the assets of the Trust.

The major finding by Markovic J was In relation to employee entitlements. Markovic J did not accept the submissions of Messers Kite and Hutchins and followed the decisions in Re Independent Contractor Services (Aust) Pty Limited (in liq) (No 2) [2016] NSWSC 106 (‘Re Independent’) and Woodgate, in the matter of Bell Hire Services Pty Ltd (in liq) [2016] FCA 1583 (‘Woodgate’),  citing the following references:

“The statutory priority referred to in s556 does not apply in respect of trust assets, and the creditors share pari passu in the trust assets, after providing for the costs of administration including the Liquidator’s remuneration and expenses…”[3]

“s556 is concerned only with the distribution of assets beneficially owned by a company and available for division between its general creditors.”[4]

In relation to the other orders sought in Messers Kite and Hutchins originating process, Markovic J was satisfied with the submissions made and only made some slight amendments as deemed appropriate.

Key points to consider

  1. The main point to consider is the employees of corporate trustee will not receive the benefit of priority under s556(1) of the Corporations Act, and will be treated pari passu with the other creditors.
  2. The case further confirms that liquidators and receivers and managers are entitled to a lien over the assets of the Trust and therefore entitled to deduct their remuneration and expenses from the Trust. The other creditors will rank pari passu for the balance after the liquidators and receivers and managers are paid.
  3. Where there is a conflict of authorities and the matter involves an insolvent trustee of a trust, it is appropriate and reasonable for liquidators and receivers and managers to approach the court for judicial advice and “the general rule is that the trust assets bear the costs of the trustee’s application for advice and directions either directly or under the trustee’s indemnity.”[5]

[1] At [56]

[2] At [57], Catepillar Financial Australia Limited v Ovens Nominates Pty Ltd [2011] FCA 677 (Gordon J) at [26].

[3] At [98], Re Independent Contractor Services (Aust) Pty Limited (in liq) (No 2) [2016] NSWSC 106 at [25]

[4] At [108]

[5] At [152]

Subhaga Amarasekara

Senior Associate



Payments from head contractor may not be preferences

In July 2017 the Supreme Court of New South Wales handed down the decision in in the matter of Evolvebuilt Pty Ltd [2017] NSWSC 901 (“EB Case”). It provides a useful guide as to when payments from a head contractor to subcontractors may or may not be considered preference payments according to the Corporations Act 2001 (Cth) (“the Act”).[1]

What are preference payments?

For a guide on unfair preference claims for creditors, you should read my colleague Alicia Auden’s article here: http://www.jhklegal.com.au/unfair-preference-claims-in-liquidation-a-basic-guide-for-creditors/

Section 588FE of the Act says that certain transactions undertaken by a company that subsequently enters liquidation (“the Company”) will be considered “voidable” and are liable to be reversed.

Section 588FA of the Act provides liquidators with the right to pursue an action as a “voidable transaction” against an unsecured creditor which has been paid out a Company in preference to other unsecured creditors.

Essentially, the following factors are required:[2]

  1. There was a transaction undertaking during the six (6) months prior to the appointment of administrators or liquidators to the Company; 
  1. The Company was insolvent at the time;[3] 
  1. The Company and the unsecured creditor were parties to the transaction; and 
  1. The transaction results in the unsecured creditor receiving more than it would have received if the transaction were set aside and the unsecured creditor were to prove for the debt in the winding up of the Company.[4]

The facts in EB Case

Evolvebuilt Contracting Pty Ltd (“Evolvebuilt”) was subcontracted by Built NSW Pty Ltd (“Built”) as the headcontractor to perform “certain interior work on a project, called the ANZ Project”.[5] Evolvebuilt, in turn, secondarily subcontracted some of that work to the eight defendants in the EB Case[6] (except Kennico Pty Ltd, the eight defendant)[7].

The ANZ Project was affected by flooding which resulted in a revised construction program by Built and ultimately, developed into a dispute between Built and Evolvebuilt.

Evolvebuilt became liable to pay the secondary subcontractors but failed to do so. As a result, the secondary subcontractors ceased work at the ANZ Project.

In March 2013, Evolvebuilt asked Built to pay the secondary subcontractors, and the failure by Evolvebuilt to pay the secondary subcontractors was brought to the attention of the CFMEU. Later in the month, Built terminated its subcontract with Evolvebuilt, and wrote to the CFMEU to confirm that payment would be made to the secondary subcontractors (subject to investigations).

Between March and April 2013, Built made the payments to the secondary subcontractors which were then the subject of the preference actions in the EB Case.

On 19 September 2013, Evolvebuilt entered voluntary administration, and later was placed into liquidation.

The decision in EB

The insolvency of Evolvebuilt at the time of the transactions, that the transactions occurred within 6 months of the date of administration, and that the transactions resulted in the defendants receiving more than if they proved in the winding up of Evolvebuilt were fairly settled.

The major factor concerning defendants 1 – 5 (the 8th defendant not being a secondary subcontractor, and therefore relying on separate facts) was the 3rd factor listed above; that is: whether Evolvebuilt was a party to the transaction for the purposes of section 588FA of the Act.

The liquidators submitted that though Built made the impugned payments, those payments were made on behalf of Evolvebuilt. In making this submission, the liquidators referred to cases regularly relied upon in such matters.[8]

In the EB Case, His Honour distinguished the facts from cases such as Re Emanuel on the basis that:

  1. Evolvebuilt could only request that Built make the payment: there was no contractual or other right to demand the impugned payments be made;
  2. There was no evidence that Built owed any monies to Evolvebuilt out of which the payments could have been directed; and
  3. There was no property or right to the benefit of which Evolvebuilt was entitled (out of which the impugned payments were made).

That is, even though Built’s payments to the secondary subcontractors had the effect of discharging Evolvebuilt’s indebtedness to those secondary subcontractors, it does not follow that Evolvebuilt was a party to the transaction for the purposes of section 588FA of the Act.


Ultimately, the liquidators failed to establish that the payments to the defendants 1 – 5 were unfair preferences under the Act.

The EB Case provides authority for the position that a payment that is made by a head contractor (or, it follows, other third party), at its discretion and free of any obligation to do so, will not be an unfair preference pursuant to the Act.

[1] This article cannot be used to replace legal advice. Each voidable transaction case is different, and you should seek legal advice if you think you may require assistance with a voidable transaction case or circumstance.

[2] There are some legislated defences to unfair preference actions, but we note that those are not relevant to EB and therefore not set out here.

[3] Factors 1 and 2 are set out in section 588FE. Note that factor 2 is more particularly described in section 588FC of the Act.

[4] Factors 3 and 4 are set out in section 588FA.

[5] At [2].

[6] Note that the case did not proceed against the 6th and 7th defendants, who settled prior to hearing.

[7] This summary will cover the matters raised by the payment to the 1st – 7th defendants, rather than the matters raised by payment to the 8th defendant, which relies on a different defence.

[8] At [22]. Such as: Re Emanuel (No 14) Pty Ltd and Commissioner of Taxation v Kassem and Secatore.

Sarah Jones

Legal Practitioner Director


Outflanked – High Court of Australia “goes behind” Bankruptcy Court Judgment

On 17 August 2017, the High Court of Australia delivered its judgment in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 (Ramsay v Compton). In this case, the High Court has taken a comprehensive look at the Court’s discretion under section 52 of the Bankruptcy Act 1966 (Act) to “go behind” a judgment and scrutinise a debt that forms the basis of a creditor’s petition.

Please note that this article provides an overview only. Bankruptcy Notices and Creditor’s Petition proceedings can be complex, and advice needs to be tailored to individual circumstances.  This article is not intended as a substitute for independent legal advice. If you have any questions or concerns we suggest that you contact JHK Legal for further information. 

What does “going behind” the judgment mean?

In bankruptcy proceedings, a creditor must establish that a debt of at least $5,000 is owed to it.[1] A final judgment that has not been stayed will, in the usual cases, be good evidence that a liability or debt is owed to it; but it is not determinative.[2]

Importantly, sequestration orders are not granted as of right. The Court has a discretion under section 52 of the Act to dismiss a creditor’s petition if, for some other sufficient cause, it sees a sequestration order ought not to be made.[3]

So, if there is evidence that the debt does not in fact exist, section 52 of the Act gives the Court hearing a creditor’s petition the discretion to go behind a judgment debt to enquire into its validity and the Court may refuse to make a sequestration order.[4]

The rationale for this position is that the Court is not just dealing with the judgment creditor and debtor, both parties and the Court are interfering with the rights of other creditors if the debtor is made bankrupt.[5]

However, it must be said that going behind a judgment is not done readily, and as we will see, there must be substantial reasons and evidence which warrant the exercise of the discretion, such was the case in Ramsay v Compton.[6]

Background facts

On 2 June 2014, Ramsay Health Care Australia Pty Ltd (Ramsay) commenced proceedings in the Supreme Court of New South Wales against Mr Compton, claiming money purportedly owing to it by Mr Compton under a guarantee.[7]

Both sides retained solicitors, briefed counsel and filed evidence on the issue of the quantum of the alleged indebtedness. Ramsay’s material put in issue the quantum of Mr Compton’s indebtedness to Ramsay, however, Mr. Compton’s response raised only a defence that he was not liable to pay a debt (referred to as a “non est factum” defence).[8]

At the trial, Mr Compton relied solely on the abovementioned defence, that is: he did not have a liability to pay a debt to Ramsay; he did not seek to dispute the amount of the alleged debt. In other words, Mr. Compton’s adopted an “all or nothing” approach to his defence.[9]

Mr Compton’s defence failed, and, in the absence of any issues raised by Mr. Compton as to the amount of the debt allegedly owed to Ramsay, judgment was awarded to Ramsay against Mr Compton for $9,810,312.33 (Judgment). Mr Compton did not appeal the Judgment and on 29 April 2015, Ramsay served a bankruptcy notice on Mr Compton requiring that he pay the Judgment Debt by 20 May 2015.[10] 

The bankruptcy proceedings

Mr. Compton failed to comply with the bankruptcy notice issued by Ramsay and on 4 June 2015 Ramsay presented a creditor’s petition. On 7 July 2015, Mr Compton filed a notice stating grounds of opposition contending that no debt was really owed to Ramsay because the Judgment was not founded on a debt that in truth or reality existed.

This position was adopted because Mr Compton’s evidence was that after a reconciliation of the debt that was deposed to in evidence, it was Ramsay that owed money to Medichoice (the Company Mr. Compton had guaranteed the debts of), and not the other way around. On that basis, Mr Compton submitted that the court should exercise its discretion to go behind the Judgment upon which the petition was based.[11]

The primary judge dismissed Mr Compton’s application and concluded that he did not have the discretion to go behind the Judgment, but even if he did, he could not exercise the discretion for a number of bases.[12]

Some of the bases upon which the primary judge made that decision included (but were not limited to) that Mr. Compton was represented by counsel in the Supreme Court, there was evidence that had been filed in the Supreme Court addressing the amount owed, no explanation was advanced by Mr. Compton as to why the amount of the Judgment was not put in issue before the Supreme Court, and that Ramsay maintained the Judgment was owed to it.[13]

Mr Compton sought leave to appeal from this decision to the Full Court of the Federal Court, and leave was granted.[14]

The Full Court’s decision

Ramsay argued that the decision in Corney v Brien[15] established a principal that a Court should not go behind a judgment which follows a full investigation at trial and where both parties were represented. Ramsay also argued that Corney v Brien stood for the proposition that “fraud, collusion or miscarriage of justice” are exhaustive of the circumstances in which a Court may or should go behind a judgment.[16]

The Full Court rejected that argument, and concluded that the judgment in Corney v Brien, did not establish that narrow view of the function of a Court. The Full Court applied the approach in Wren v Mahony that:

where reason is shown for questioning whether [to go] behind the judgment … there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof… [but rather must],,,exercise its … discretion to look at what is behind the judgment“.[17]

The Full Court held that the primary judge erred in concluding that the discretion to go behind the Judgment had not been enlivened and allowed Mr Compton’s appeal, ordering that the Bankruptcy Court should go behind the Judgment.[18]

By special leave, Ramsay appealed to the High Court of Australia, arguing that the Full Court erred in setting aside the decision of the primary judge to decline to go behind the Judgment.[19]

Ramsay’s submissions

Ramsay maintained that Corney v Brien established that the Court’s discretion to go behind a judgment after a contested hearing is enlivened only in the event of some fraud, collusion or miscarriage of justice.[20] Although, there was no suggestion of fraud or collusion, Ramsay argued that a miscarriage of justice in this case:

…refers only to circumstances which impeach the judgment such that the judgment should never have been obtained.”[21]

Ramsay argued that in the circumstances, the Full court could not have concluded that the judgment was affected by some miscarriage of justice and that the Full Court took too broad a view of the approach adopted in Wren v Mahony, and that these propositions were consistent with the principle of finality in litigation.[22]

Mr. Compton’s submissions

Mr Compton submitted that the question for a Bankruptcy Court was whether the judge was persuaded that there was a debt truly owing to the petitioning creditor, and that a Bankruptcy Court should go behind a judgment where sufficient reason is shown for questioning whether, behind the judgment, there is in truth and reality a debt due to the petitioning creditor. He further submitted that sufficient reason was shown in this case.[23]

The High Court’s decision

By majority of 4 to 1 (Gageler J dissenting), the High Court held that Ramsay’s submissions should be rejected, and Mr Compton’s accepted. In doing so, the High Court concluded that:

  1. The broad approach in Wren v Mahony should be adopted, that is, a judgment debt is on the face of it evidence that a debt is owed, but it is not determinative;[24]
  2. A court hearing a creditor’s petition may go behind a judgment debt to enquire into its validity if there is evidence that the debt does not in fact exist;[25]
  3. In this case, there was sufficient evidence available to the primary judge to exercise the discretion to go behind the judgment but this was not done[26];
  4. the Full Court was correct to conclude that there was a substantial question as to whether the debt on which Ramsay relied for its bankruptcy proceedings was owing, and for those reasons, the Bankruptcy Court should proceed to investigate this question and to decide whether it was open to it to make a sequestration order;[27] and
  5. Ramsay’s appeal should be dismissed with an order that Ramsay pay Mr. Compton’s costs of the appeal.[28] 

JHK Legal observations

While a judgment debt is still good evidence that a debt is owed, the decision in Ramsay v Compton has made clear that the narrow view (that is, a judgment debt or money order is determinative that a debt is owed for the purposes of bankruptcy proceedings) should not be preferred.

As noted above, the High Court has taken the view that a broad interpretation of the Court’s discretion in section 52 of the Act should be taken should an applicant debtor file sufficient evidence. With that in mind we consider it prudent that creditors continue to keep documents and evidence supporting their position that a debt is owed well after any contested trial, summary judgment and or a default judgement is entered, so that this evidence can be relied upon if necessary at a later date, and especially if bankruptcy proceedings are being contemplated.

If you are considering enforcing your rights with a Bankruptcy Notice or Creditor’s Petition, JHK Legal are happy to assist you with this process.

Daniel Johnston

Senior Associate



[1] See section 44(1) (a) & (b) of the Act;
[2] See section 40(1) (g) of the Act; Wren v Mahony (1972) 126 CLR 212 (Wren v Mahony); Ramsay v Compton at paragraph 42
[3] See section 52 of the Act; see also section 104(2) of the Federal Circuit Court of Australia Act 1999 where a party may apply to the Federal Circuit Court of Australia for a review of a Registrar’s powers in making a sequestration order.
[4] See Wren v Mahony; Ramsay v Compton at paragraph 44.
[5] See Ramsay v Compton at paragraph 55.
[6] Ibid at paragraph 20.
[7] Ramsay v Compton at paragraph 7.
[8] Ibid at paragraph 8.
[9] Ibid at paragraphs 9.
[10] Ibid at paragraphs 10 and 11.
[11] Ibid at paragraphs 12 to 15.
[12] Ramsay v Compton at paragraphs 17 and 20.
[13] Ibid at paragraphs 21 to 23.
[14] Ibid at paragraphs 24 and 25.
[15] [1951] HCA 31; 84 CLR 343.
[16] Ramsay v Compton at paragraph 26.
[17] Ibid at paragraph 27.
[18] Ibid at paragraph 30.
[19] Ramsay v Compton at paragraph 30 to 32.
[20] Ibid at paragraph 33.
[21] Ibid.
[22] Ibid at paragraph 33 to 35
[23] Ibid at paragraph 37.
[24] Ibid at paragraphs 42 to 43 and 47
[25] Ramsay v Compton at paragraph 44.
[26] Ibid at paragraph 70.
[27] Ibid at paragraph 72
[28] See Orders dated 17 August 2017.

Retention of Title Clauses and the Registration of Security Interests on the PPSR as a PMSI

When a business sells goods there are many ways to structure payment. JHK acts for a number of clients who have agreed to supply goods to their customers on credit. This can often be commercially advantageous to our clients, but carries risk.

To manage that risk, we often advise our clients in such a position to consider Retention of Title clauses and the registration of security interests on the Personal Property Securities Register (“PPSR”) as a Purchase Money Security Interest (“PMSI”).  Belinda Pinnow of our office has previously written about how the PPSR can provide protection to creditors in the event of their debtor’s insolvency.

Read More

Please note that this article provides an overview only. Retention of Title clauses and the registration of security interests on the PPSR as a PMSI can be complex, and need to be tailored to individual circumstances.  This article is not intended as a substitute for independent legal advice.

How Retention of Title Works

Retention of Title clauses provide that title in goods delivered to the customer remains with the supplier until they have been paid for in full. Commonly these clauses will:

  • Prohibit the customer from dealing with the goods other than selling them in the ordinary course of business at market value. If the customer wrongfully sells or disposes of the goods, then they are required to hold the proceeds on trust for the Seller;
  • Provide the supplier with certain rights over the goods, such as the right to recover possession at any time, including entering premises where the goods are believed to be stored;
  • Address what happens if the customer converts, processes or mixes the goods with other goods.

In usual circumstances, the customer will provide security to the supplier in the form of a charge.

Including these clauses in a contract is not sufficient to secure your interest. For this, you need to register it on the PPSR as a PMSI. Care must be taken when preparing to contract to ensure that it has the appropriate clauses to allow for such registration.

What is the PPSR?

The PPSR is a national system that records security interests in personal property. For a small fee, anyone can search the register.

“Personal property” is a wide category and includes most assets of a business such as stock, equipment, and motor vehicles. It also extends to intangible property such as intellectual property (“IP”) and debts owed to the business.

However, “personal property” does not include any interest in land or buildings, which under law are considered “real property”.

Why is this important to register your interests on the PPSR?

If the customer enters liquidation or receivership, there is a very real risk that any goods in the possession of the customer (whether they have been paid for or not) could be seized by a liquidator or receiver and sold to pay other creditors.

As outlined in Belinda Pinnow’s article, it is necessary to perfect security interests to obtain protection in the event of a debtor’s insolvency, and PPSR registration is one element of this.

The cost of registering most interests on the PPSR is very modest compared to the protection it provides.

PPSR registrations can be technical. Minor mistakes can result in a registration being ineffective.

What is a PMSI?

Generally, the PPSR operates on a “first in, best dressed” principle, with earlier registered security interests prevailing over later ones.

PMSIs are an exception. Certain interests deemed to be PMSIs under the Personal Property Securities Act 2009 (“PPSA”) can obtain a “super priority” over other registered interests, even if registered afterwards. Retention of title is one way that a PMSI may arise.

It is important to note that there are strict timeframes to obtain this “super priority”. Under Retention of Title arrangements, the applicable rule is that the PMSI must be registered before the customer obtains possession of the goods. Note that it is not necessary to make registrations each time goods are to be supplied – one registration can cover ongoing arrangements.

While powerful, PMSIs themselves can be trumped in some circumstances – such as when debt factoring financiers enter the picture under section 64 of the PPSA.


When selling goods on credit to customers, it is important to consider retention of title clauses and the registration of security interests on the PPSR as PMSI to protect your interests.

If you require any assistance with the drafting contracts for the sale of goods or the lodgement of security interests on the PPSR, please contact JHK Legal.

Matthew Paul



PPSR Protection in the Event of Insolvency

What has happened to my security interest?

 As a creditor, the primary purpose of obtaining security over personal property is to have recourse against that secured property in the event of default by the debtor.  Any creditor relying on security interests must understand the impact of the PPSA and, moreover, ensure that their security interests are properly perfected to achieve the maximum protection possible in the event of the insolvency of the debtor.

This article discusses the interaction of the Personal Properties Securities Act 2009 (Cth) (PPSA) (the Act) with existing corporate and personal insolvency laws, largely governed by the Corporations Act 2001 (Cth) (the Corp Act) (for corporate insolvency) and the Bankruptcy Act 1966 (Cth) (the BA) (for personal insolvency).  It is noted from the outset that the PPSA does not have the effect of limiting the operation of existing corporate and personal insolvency law, it merely prevails in the event of any inconsistency: see s264 PPSA.

Whether you are entitled to enforce your security interest on the debtor’s insolvency depends on whether you have perfected your security interest.  The failure to perfect a security interest prior to the commencement of select insolvency proceedings will render the security interest, ineffective: see s267 of the PPSA.  Section 267 of the PPSA applies where a debtor:

  1. is placed in liquidation;
  1. is placed in voluntary administration;
  1. enters into a Deed of Company Arrangement; or
  1. is placed into bankruptcy either voluntarily or by sequestration order.

(insolvency proceedings)

In the case of a corporate debtor, there is an additional criteria imposed by section 588FL of the Corp Act, that is, if the creditor is perfecting its security interest by registration on the Personal Properties Securities Register (PPSR) that registration must have occurred no later than twenty (20) business days after the date of the security agreement or six months prior to the commencement of the insolvency proceedings against the corporate debtor.  Failure to register within the first twenty business days should not deter creditors from registering security interests as after the expiration of six months from the date of registration, the security interest will survive the appointment of liquidators, administrators or trustees.

Any unperfected security interest vests in the grantor (being the provider of the security interest to the creditor, most commonly, the debtor) on insolvency pursuant to section 267(2) of the Act.  Essentially, all this means is that on insolvency the secured property, free of the security interest, vests in the debtor for use by the appointed liquidator, administrator or trustee in bankruptcy (as applicable) or, put another way, the security interest becomes ineffective.

So how do you protect your security interest?  By perfection of your security interest.

Creditors need to be diligent in perfecting their security interests, which means that they need to do all that they can possibly do to protect their security interest from other competing security interests.

A security interest is generally perfected where:

  1. it is enforceable against a third party, that is, one of the following applies:

a. the creditor has possession of the property secured; or

b. the creditor has control of the property secured; or

c. there is evidence of a security agreement in writing between the creditor and the debtor which the debtor has adopted by signing or its actions and which sets out the details of the property secured and the creation of the security interest; and

2. one of the following applies:

a. the security interest is registered on the PPSR; or

b. the creditor has control of the property (other than by seizure or repossession); or

c. the creditor has control of the property (for example, in the case of bank accounts, the creditor has control of that account).

This is just a snapshot of what is a broad area of law and it is not intended that this article substitute for tailored legal advice particular to your circumstances.

If you need any assistance with any insolvency or PPSA related queries, please do not hesitate to contact JHK Legal.

Belinda Pinnow

Senior Associate


Insurers, Their Lawyers and Today’s Economic Challenges


Australian Insurers are finding the honeymoon may be over. With floods, fires and cyclones in multiple States of Australia, corporate collapses resulting in multi-million dollar Insurance claims by out of pocket investors and shareholders and the global financial crisis, Insurers are understandably frightened, timid and seeking to minimise their costs wherever possible.

Their lawyers are finding there is a growing need to respond to the economic pressures on the Insurance Industry and the resultant cost minimisation mind-set of Insurer Clients.

This article will explore the changing landscape of Australian Insurance and the ways that lawyers representing Insurers may seek to modify their practices to meet this change. The article will also explore the potential benefits of two ways legal service providers may seek to modify their practice, alternative fee arrangements and seeking to reduce the costs of litigation.

While no single strategy will totally reduce the pressures faced by Insurers with regard to the legal services they use, Legal Service providers must work with their clients to not only minimise legal costs, but more importantly develop strategies to maximise value and profitability for the client.


The global economic crisis has had implications for both Insured parties and the companies that insure them. For Insured parties, economic conditions have resulted in increases in insurance premiums and reductions in or difficulty obtaining coverage.[1] For Insurers, corporate collapses have led to increased claims under Director and Officers Liability and Statutory Liability Insurance Policies and Insurers have found themselves being joined as parties to civil litigation between their client’s and third parties.[2]

The combination of these global economic pressures and significant weather events across Australia over the last 24 months have resulted in significant decreases in profitability for some of Australia’s major Insurers.[3] It is as a result of these changes to the insurance landscape that legal service providers need to review their relationships with their clients and find ways to better service their needs.


There is no question that the current economic climate has had and will continue to have an effect on client’s attitudes to legal costs.[4] The Insurance Industry in particular is increasingly cost conscious, a trend reflected in an increased number of client requests to move from the traditional time billing methods used by the vast majority of law firms to alternative billing methods.[5]

The disadvantages of time billing for both clients and lawyers have been well publicised and include a lack of cost certainty for the client and a focus on the time spent on a file by legal practitioners, rather than the value of work completed to the client. Alternative fee arrangements such as fixed costs, staged costing, value billing and capped fees can serve to alleviate these disadvantages.[6] For a cost conscious client seeking to minimise their legal spend, alternative fee arrangements may be able to provide the budget certainty required to enable legal action to remain a viable method of resolving disputes.[7]

Additional benefits of alternative fee arrangements are that they can have the effect of removing any enticement for lawyers to over-service a matter to meet billable hour targets. As an example, fixed cost billing can provide lawyers with motivation to ensure that only those tasks required to achieve a positive outcome are undertaken, and to reduce time spent on matters wherever possible. These inducements arise as it is only through these actions that law firms can ensure that fixed fee arrangements are financially viable for not only the client, but the law firm itself.

However, as always in the law, there is a reverse side to the alternative fee arrangement coin. Some opponents have raised concerns that where billing is fixed or capped, lawyers can be incentivised to cease working on a file once the maximum fee has been reached, or have work conducted by less experienced solicitors and paralegals to reduce costs.  There are also many cases where time billing is still considered the most appropriate billing method for both clients and lawyers, such as where there are variables that make assessing the cost of a file impossible, or where court approval is required for fees.[8] Time billing also allows for the highest level of client scrutiny for work done, time spent and the costs associated, as it allows a client to contemporaneously monitor work that has been completed and costs charged for items of work.

What becomes apparent from the above is that there is no one set panacea that can be implemented to lower legal costs for Insurance Clients. However it is equally clear that in order to respond to client’s increased scrutiny of legal costs and requests for changes to traditional billing methods; it is necessary for legal service providers to be open to alternative fee arrangements and structures.[9]


It is not only in the calculation of legal costs that there are opportunities to meet the changing needs of Insurance Clients. It is also possible to identify and take advantage of opportunities for ‘mutual long term benefit (seeking better value) rather than simply short-term gain (cheaper legal fees)’.[10] Reducing the cost of litigation is a key method that can add value to the services provided to Insurance Clients.

Insurance Litigation contributes a large proportion of common law and commercial litigation in Australian Courts, and the industry pays the large proportion of costs associated with this litigation.[11]

Litigation itself is known to be a costly, time consuming and unreliable process of settling disputes, although often the only option left available to parties.[12] Although time billing is often blamed for the increased legal costs incurred by clients, some attribute much of this rise to an increase in litigation and the general costs associated.[13]

As Australia’s primary litigator, the Insurance Industry has a significant vested interest in reducing the costs of litigation wherever possible.

Insurers can often be guilty of overusing experts in litigated matters. It has been suggested that in an effort to reduce the costs of litigation, insurers should attempt wherever possible to agree on a joint independent expert, which can effectively halve the costs involved and may lead to early settlement where both parties agree to be bound by the independent expert’s opinion.

As research shows that the longer a matter is delayed, the greater the cost to the parties, a key way to reduce the costs of litigation is to reduce delay wherever possible.[14]

Early settlement of matters is a significant tactic in which delay and legal costs can be avoided. Due to the high costs involved in litigating a matter to trial, it has been documented that reduced (or increased, in defended matters) offers of settlement at an early juncture of a matter can result in lesser costs than if the matter continues to and is decided at trial, even where a party is successful.  It is therefore necessary for lawyers to expertly assess the chances of success at an early stage of litigated matters, to ascertain whether there are opportunities for a beneficial early settlement, or indeed whether it is more economical for the client to abandon the matter.[15]

Negotiating outcomes with other insurers in litigated matters also holds significant benefits for the ongoing commercial relationship that exists between the parties. Insurers increasingly recognise that settling disputes via means other than litigation can be more conducive to maintaining effective long term business relationships with other Insurance companies.[16] The more effective the business relationships are between insurers; the less likely there will be disputes in need of resolution, via either litigation or through other less formal legal processes.


The above strategies outline just a couple of ways that lawyers representing the insurance industry may modify their practices to respond to the economic pressures faced by the industry. It seems apparent that in order to address the cost minimisation priorities of the industry Legal Practitioners must see the economic downturn as an opportunity to revisit their billing procedures, practices and their relationships with their clients to create positive change.  During this period of instability it will be more important than ever for lawyers representing the insurance industry to focus on the quality, efficacy and value of the services they provide to ensure that their relationships with their clients can outlast the slump.

[1] John Morgan, “The impact of the global economic crisis on the Australian Insurance Industry: A legal perspective” (2009) 24(5) Australian Insurance Law Bulletin 62 at 62.

[2] Greg Pynt, ‘The year that was: in some ways, insurers might prefer it wasn’t” (2011) 27(2) Australian Insurance Law Bulletin 33.

[3] See M McNamara, ‘Floods, Cyclones, Bushfires and the UK: Why IAG’s Profits are Down’ (2011) Business Review Australia ,< http://www.businessreviewaustralia.com/sectors/floods-cyclones-bushfires-and-uk-why-iag-s-profits-are-down> at 19 June 2012 ; ‘QBE Insurance Group reports profit fall, upbeat on 2011 outlook’, Perth Now 28 February 2011 < http://www.perthnow.com.au/business/qbe-insurance-group-reports-profit-fall-upbeat-on-2011-outlook/story-e6frg2rl-1226013528953> at 19 June 2012.

[4] Hon James Jacob Speigelman AC, ‘Implications of the current economic crisis for the administration of justice’ (2009) 18(4) Journal of Judicial Administration 205 at 208.

[5] Brian Armstrong, ‘Adding some science to the billing debate’ January 2011 Australiasian Law Management Journal 5 at 5.

[6] David Vilensky, ‘The benefits of fixed fee pricing’ 39(1) Brief 12 at 12.

[7] Jeffrey Carr, ‘Future Firm: how to set prices under a fixed fee model’ November 2009 Australasian Law Management Journal 1 at 1.

[8] Richard Reed, ‘Billing Innovations, New Win-Win ways to End Hourly Billing’ (1996) at 13-15.

[9] Jeffrey Carr, ‘Future Firm: how to set prices under a fixed fee model’ November 2009 Australasian Law Management Journal 1 at 2.

[10] John Chilsolm, ‘A billing discussion worth its time’ (2010) 470 Lawyers Weekly at 19.

[11] Hon Mr Justice T R H Cole, ‘Insurance and the Cost of the Law’ (1994) 4(1) Journal of Judicial Administration 55 at 55.

[12] Michael Mills and Nicholas Furlan (2002) ‘Resolving insurance disputes: the value of less formal processes’ 5(1) ADR Bulletin 7.

[13] Anne Priestly (2009) ‘Breaking the billable myths’ 463 Lawyers Week

[14] Hon Mr Justice T R H Cole, ‘Insurance and the Cost of the Law’ (1994) 4(1) Journal of Judicial Administration 55 at 56.

[15] Hon James Jacob Speigelman AC, ‘Implications of the current economic crisis for the administration of justice’ (2009) 18(4) Journal of Judicial Administration 205 at 208.

[16] Michael Mills and Nicholas Furlan (2002) ‘Resolving insurance disputes: the value of less formal processes’ (2002) 5(1) ADR Bulletin 7 at 10