calculator house
No Comments

Reverse Mortgages – An Alternative to Downsizing?

A reverse mortgage involves a secured loan which gives the lender an interest in the unencumbered value of your home (being the market value of your property, less any debt secured against that property), commonly known as the “equity” in your home. Accessing funds through this type of loan is used by some retirees as an alternative to downsizing.

How it works

Put simply, under a reverse mortgage loan a lender agrees to advance money to you in consideration for an interest in the equity of your property, proportionate to the loan amount. [...]  READ MORE →

unfair highlighted purple
No Comments

Unjust strata by-laws and unreasonable strata levies

There is a recent Supreme Court decision concerning unjust clauses in a strata exclusive use rights by-law and also concerning unreasonable strata levies.

In case of Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173, the Court deals with a matter involving a penthouse apartment (Lot 11) in Point Piper Sydney situated on the fifth and sixth floors of the strata building. The building comprises of 11 lots in total. The penthouse has extensive ocean views of the Sydney harbour particularly observed from the balconies on the two floors and the rooftop area. The balconies and the rooftop have been accepted to be common property. There were also various valuation evidence that the exclusive use rights alone amounted to $2,250,000 in value. [...]  READ MORE →

featured-image-posts-800w
No Comments

When Will a Court Replace a Trustee of a Bankrupt Estate?

Recently, the Federal Court of Australia (Justice Perry) in Yan v Spyrakis (Trustee), in the matter of the bankrupt estate of Liu [2024] FCA 768 considered when a Court may make an order to replace a trustee of a bankrupt estate under section 90-15 of Schedule 2 to the Bankruptcy Act 1966 (Cth) (“the Schedule”).

Facts

In December 2017, Mr Yan loaned $10 million to Mr Liu and GR Capital. In November 2021, Mr Liu became bankrupt, and Mr Spyrakis (“the Trustee”) was appointed as his trustee in bankruptcy. In March 2022, the Trustee published a report to the creditors of the bankrupt estate of Mr Liu (“the Estate”) stating approximately $64 million was owed to creditors and that Mr Yan, Ruifa Wang, and Yuqing Liu and Xingfeng Australia International Investment Pty Ltd (“Xingfeng”), were the unsecured creditors owed the largest debts. [...]  READ MORE →

featured-image-posts-800w
No Comments

Unregulated business loans – Considerations for lenders

Small and medium-sized enterprises (SME) account for the vast majority of businesses operating in Australia and yet obtaining business finance from the country’s top bank lenders can be a challenging and time-consuming exercise for them. Unsurprisingly, there seems to be a growing preference amongst businesses in recent years towards non-traditional lending options due to less stringent requirements, giving rise to an increase in private lenders operating in the space.

Private loans to corporate entities are generally subject to fewer regulations, which makes the application and approval process quicker and easier. [...]  READ MORE →

house puzzle red blue
No Comments

Navigating Family Provision Claims

Ensuring Fairness: Navigating Family Provision Claims

The principle of testamentary freedom suggests that a will maker is not constrained with regards to testamentary wishes and choices. However, chapter 3 of the Succession Act 2006 (NSW) (the Act) enables those who are related to the deceased by blood, close relationship and/or dependence, to initiate legal proceedings, seeking orders for provision or increased provision from the deceased’s estate, for maintenance, education, or advancement in life, which would be different to the deceased’s intended dispositions in their last will. [...]  READ MORE →

featured-image-posts-800w
No Comments

How to Take Someone To Court Once they have been declared bankrupt

How to Take Someone To Court Once they have been declared bankrupt – Lessons from Tse v Evans as Trustee in Bankruptcy for Ngo [2024] FCA 787

Many people understandably think that once someone has been declared a bankrupt, any unsecured money that the bankrupt owed them will be diminished significantly or disappear altogether. This is understandable, as the bankrupt loses control of their own assets and a third-party steps in to distribute those assets between all the people the bankrupt owed before they were declared bankrupt.

However, the Court does not entirely close the option of bringing or continuing legal proceedings against a bankrupt in person. The advantage of this is that if the proceedings are successful, the litigant will recover more of their money back than if they joined the queue of unsecured parties waiting for the Trustee in Bankruptcy to distribute whatever is left after their fees are paid. [...]  READ MORE →

featured-image-posts-800w
No Comments

Changes to Casual Employment Arrangements

CLOSING LOOPHOLES – Changes to Casual Employment Arrangements

On 12 February 2024, the Federal Government passed the second part of its two-part ‘Closing Loopholes’ legislation. This legislation introduced a considerable number of substantive changes to the Fair Work Act 2009 (FW Act) and represents the largest set of reforms to national workplace laws since the FW Act was introduced in 2009.

Amongst other reforms, the Closing Loopholes legislation introduces several significant changes to the laws and obligations relating to casual employment arrangements, including: [...]  READ MORE →

parents teaching
No Comments

New World in Family Law Parenting Proceedings

A legislative shift in parental responsibility: the new world in family law parenting proceedings

On 06 May 2024, significant amendments were made as to how the Court deals with parenting arrangements.   One such change relates to the law on parental responsibility for major long-term issues.

The definition of major long-term issues remains unchanged.   It includes issues of a long-term nature such as (but not limited to) the child’s education, religious and cultural upbringings, health, name and where the issue relates to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent (in summary, residence). [...]  READ MORE →

featured-image-posts-800w
No Comments

Can a video recorded on a phone constitute a valid last will?

Wills and Estates

In Re estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211, the Supreme Court of the Australian Capital Territory (Justice Baker) considered whether a video recorded on the deceased’s phone could be considered as a last will.

On 26 December 2023, Dora Marleny Rodriguez Navarro (“the Deceased”) went into hospital in Lima, Peru for cosmetic and abdominal surgery. Due to complications during the surgery, the Deceased passed away on 30 December 2023. The Deceased had not made a formal will, however, prior to her death, she had recorded a video on her phone. In the video she made it “clear” that her money and properties were to go to her husband, except for a “small portion” which was to go to her parents. [...]  READ MORE →

featured-image-posts-800w
No Comments

When will courts pull the plug? Understanding the termination of a Deed of Company Arrangement under section 445D(1)(g) of the Corporations Act 2001 (Cth)

When will a Court terminate a Deed of Company Arrangement (DOCA) for ‘some other reason’ under section 445D(1)(g) of the Corporations Act 2001 (Cth) (”the Act”)? In two recent cases, two separate courts have shed light on whether, and when, ‘public interest’ serves as a compelling reason to terminate a DOCA.

Yan v The Won Capital Pty Ltd [2024] NSWSC 758

Facts

In December 2017, Mr Yan loaned $10 million to GR Capital. In October 2018, GR Capital appointed administrators who reported to creditors the preliminary view that GR Capital had been insolvent since at least December 2017. Despite the administrators’ recommendations against the DOCA, creditors resolved on 30 January 2019 that GR Capital execute a holding DOCA allowing time to complete a property development before creditors could take action against GR Capital. Mr Yan commenced proceedings seeking termination of the DOCA under section 445D(1) of the Act to allow a liquidator to investigate insolvent trading claims. Mr Yan offered to provide funding to the liquidator for the investigations. As the limitation period on any insolvent trading claim was about to expire, it became urgent whether the DOCA was to be terminated and a liquidator appointed. [...]  READ MORE →

dollars-umbrella-balance-800w
No Comments

Costs: Are they actually recoverable in the Local Court?

Successful claims in the Local Court may allow parties to be entitled to an order for costs in their favour.

Generally, at the end of a hearing, the Court will hear arguments from parties in relation to costs. As is customary, the Court will usually award successful parties their costs – although the proportion of costs to be awarded depends on many factors. However, a successful party can be awarded no costs for various reasons. For civil claims, there are certain quantitative thresholds that are recoverable within the Local Court. [...]  READ MORE →

Business flat vector concept man sleep above coins and other bring coin to him metaphor of big boss.
No Comments

Payment of a Judgment Debt by Instalments: Moving a Mountain starts by carrying away small Stones

By Eleanor Campbell-Rogers, Law Clerk at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Payment of a Judgment Debt

Debt recovery which ends up in an order of a Court or Tribunal requiring payment of a specific amount of money is a ‘judgment debt’. This type of debt recovery usually results from the Court/Tribunal accepting the creditor’s debt recovery attempts and awarding damages, costs, interest, repayment of a loan, restitution, lump sum child support, or a certified money order (amongst others). [...]  READ MORE →