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Calderbank Offers – What You Need to Know

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

 

In our earlier post about settlement negotiations “Agreement in principle” – is it binding?“, we discussed the an offer that was agreed to “in principle” and what that means.  The offer that we talked about was a Calderbank offer.

What is it?

Calderbank offer is a type of settlement offer designed to put the offeror in a position to ask the court to make an indemnity costs order, if the offerer succeeds in the litigation beyond the amount offered. An indemnity costs order is an order that the less successful party pay a larger portion of the other party’s costs. Normally ‘costs follow the event’ – which means that an unsuccessful party  will be ordered to pay the successful party’s costs of litigation. However normally, because of the way the costs assessment process works, only a portion of the successful party’s actual costs will be recoverable. However by making a Calderbank offer, a party to litigation can improve the chances of recovering a significantly higher proportion of those costs. These offers are based on the principles outlined in the English case of Calderbank v Calderbank [1975] 3 All ER 333.
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Garnishee Orders – 5 things to know.

By Renee Smith a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In a previous blog, which can be found here, we explained the advantages and disadvantages of using Garnishee Orders to recover money from a Judgement Debtor.

Here are 5 things you may not have known about Garnishee Orders:

  1. There is no filing fee on a Garnishee Order.

The process of issuing a Garnishee Order against a Garnishee is a quick and inexpensive process.

  1. You can issue a Garnishee Order with limited information about your Judgment Debtor.

An advantage of Garnishee Orders is that you don’t need a lot of information in order to use the garnishing process. In most cases, the name of the debtor is all that is required, however the more information that is provided the quicker the process will be.

  1. A Garnishee Order for Debts can be Repeated.

A Garnishee Order for Debts will garnish an amount owed to, or held on behalf of, the Judgment Debtor at a particular period of time.  However, Garnishee Orders can be issued on the same garnishee multiple times. Therefore, should a Garnishee Order by issued on a bank, but not recover any monies at that time, a Judgment Creditor may choose to wait a further period of time and issue an additional Garnishee Order to the same bank.
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“Agreement in principle” – is it binding?

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

When you’re negotiating the terms of a contract, settlement or payment arrangement, you might hear the term “agreement in principle”.  The obvious questions are:

  1. What does it mean?
  2. If you agree “in principle” to a person’s offer, or that person agrees “in principle” to your offer, can the agreement be enforced?

These are questions that are considered in numerous cases and various situations. The Courts have historically considered such cases in the context of different categories of agreement based on the decision in Masters v. Cameron. Recently the Supreme Court of New South Wales looked at these questions again in the matter of P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6. In this matter, Mr Leahy (and his related parties) commenced proceedings against Mr and Mrs Hill to recover an amount he claimed was due for repairs to a shed and arrears under a licence agreement.
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PRIORITY PAID?

By Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group.

The Australian legal system has of late become a confusing morass of conflicting judgments on the order of priority of payment of creditors of insolvent trustees from trust assets. This has a significant impact on creditors, particularly employees, whose priority payment is no longer assured, by quirk of the structuring advice given to an employer without their knowledge or consent. Well the landscape was twisted again recently with a decision today by a five member panel of the Victorian Court of Appeal.

A number of States in the Commonwealth of Australia have issued judgments that differ in how to apply trust assets for trust creditors. In New South Wales, the 2016 decision of Brereton J in Re Independent Contractor Services (Aust) Pty Ltd (in liq) (No 2) held that the property of the trust was (perhaps unsurprisingly on one view) trust property. More surprisingly, his Honour found it was NOT company property distributable in the priorities provided for under section 556 of the Corporations Act 2001. His Honour relied upon the on the 1983 South Australian Supreme Court decision by then Chief Justice King in Re Suco Gold who held that trust assets are to be applied in accordance with the terms of the trust.
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DEBT COLLECTION IN A SAFE HARBOUR

Debt collection commentary by Darrin Mitchell, Senior Associate at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group.

Credit Managers should be aware of the reforms made to the Corporations Act 2001 (“the Act”) that attempt to create a shield for directors of companies that believe their company is in financial stress and how it affects their debt collection strategies.

Changes in September 2017 to the Act created section 588GA and deal with specific actions taken by directors in relation to debts incurred after 19 September 2017. These reforms are commonly referred to as the “Safe Harbour Reforms”.

It idea behind the reforms is to assist directors by not penalising them should they recognise their company is in financial distress and seek professional advice from an “appropriately qualified entity” to get out of that situation.

If when a debt has been incurred the director has a suspicion that their company is, or may become, insolvent, and they are attempting to trade out of that position with advice from the appropriately qualified entity, then the director may be protected from the insolvent trading provisions under the Act.
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Compensation Law – Court Costs

Court Costs – Compensation Law

Criticism from the Courts in relation to the costly nature of all Court proceedings is not lost on our Compensation Law Team at Matthews Folbigg. We know the importance of balancing our duty to you to achieve maximum compensation with a just outcome for all of our clients, including the duty to keep costs to a minimum.

If you have any concerns or require a more information regarding your Personal Injury or Compensation claim, please call our Personal Injury team at Matthews Folbigg:

Matthews Folbigg Pty Limited
Level 7
10-14 Smith Street
PARRAMATTA NSW 2150
Ph: (02) 9635 7966
E: Paulo@matthewsfolbigg.com.au

 

Our Personal Injury Lawyers can provide practical solutions and exceptional results in relation to your personal injury claim on a No Win, No Fee basis. 

Matthews Folbigg has over 50 years’ experience protecting personal injury and compensation rights of people living in Parramatta and the Hills. 

 

 

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Workers Compensation Claims

Workers Compensation Claims

Under the Workers Compensation Scheme, if you are injured at work, you can still have a claim for compensation, including:

  1. Compensation for medical expenses incurred as a result of a work related injury;
  2. Liability as to whether your injury is work related;
  3. A Lump Sum payment for permanent impairment, if you satisfy the necessary threshold of 11% Whole Person Impairment.

Due to the changes to the Workers Compensation Law, an injured worker is only entitled to a one-off claim for permanent impairment. However, an injured worker may consider a further deterioration claim if an earlier Lump Sum Claim had been made prior to 19 June, 2012. If you have previously received a Lump Sum Claim, we can discuss.

A Matthews Folbigg Compensation Lawyer can approach the Workers Compensation Independent Review Office (WIRO) for funding as to legal costs. Claimants should note that a claim can only be made by a Lawyer who is WIRO approved.

For further information click on the link following https://www.matthewsfolbigg.com.au/services/personal-injury-compensation/
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Personal Injury Claim– Slip and Fall Claims

Personal Injury Claim – Slip and Fall

The recent NSW case of Sutherland Shire Council v Safar [2017] concerns a slip and fall personal injury claim. In this case, the injured person slipped on water on the floor of an entertainment centre owned by the defendant. When the case first went to court, it was held that the owner of the centre was liable because the water on the floor was likely to have come from umbrellas. The centre owner had made no provision for wet umbrellas, but which could reasonably been have expected to given that it was raining outside.

The owner of the centre appealed against that decision. However, their Appeal was dismissed on the basis that they had breached their duty of care as an Occupier. This was because they had not taken reasonable steps to control patrons bringing in wet umbrellas and coats into the auditorium or at least minimise the risk which arose from this.
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