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Trust issues? – The Court’s got your back.

By Rebecca Georges, a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

Although there are adverse problems that can arise when a trust deed is missing, destroyed, or misplaced, trust us when we say all is not lost!

In fact, losing an original trust deed is not an uncommon occurrence brought before the Courts. In Gainer (considered below) the court held that “applications for judicial advice by trustees in relation to lost trust deeds are not unusual” (per Kunc J at [16]) [...]  READ MORE →

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Understanding Bankruptcy Notices: The Role of PO Box Addresses

By Lara Wehbe a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

If a creditor provides a post office box for payment of a bankruptcy notice will the notice be considered valid?

We can now look to the case of Scenic Rim Regional Council v Cutbush (No 3) [2025] FCA 1103 which sets a clear precedent on whether the notice will be effective.

Facts

The Applicant Creditor asserted that they had served a bankruptcy notice by post to the address on the bankruptcy notice (which was listed as a post office box). [...]  READ MORE →

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High Court refuses special leave on s588FDA unreasonable director related transactions

By Harold Peng, a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

The High Court has refused special leave to appeal in the dispute between CEG Direct Securities Pty Ltd (“CEG”) and the liquidator of Runtong Investment and Development Pty Ltd (in liq) (“Runtong”). The Court said that the result depended on the specific facts of the case and that no wider point of law was involved. It also said there was no good reason to doubt the Full Federal Court’s judgment. This leaves the Full Federal Court decision as the main guide for future cases of this type. [...]  READ MORE →

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Equitable Receivership to Enforce a Chinese Arbitral Award in Australia

By Harold Peng, a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Case Note: Ningbo Weisheng Dingxuan Equity Investment Fund Partnership Enterprise (Limited Partnership) v Zhong [2025] FCA 1053

This decision of Ningbo Weisheng Dingxuan Equity Investment Fund Partnership Enterprise (Limited Partnership) v Zhong [2025] FCA 1053 shows how a recognised foreign arbitral award can be turned into a real recovery against Australian assets. The creditor had already converted a Chinese arbitral award into an Australian judgment for $176 million under s 8(3) of the International Arbitration Act 1974 (Cth). The question was how to realise value when the key local asset was co-owned. [...]  READ MORE →

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Shortcut to Intention: The presumption in s128B(5) Bankruptcy Act

By Amelia Fearnside, a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

Section 128B(5) creates a shortcut to establishing that a bankrupt was intending to defeat his creditors in making superannuation contributions. In the absence of proper books and records of the bankrupt’s business, the section presumes the bankrupt was insolvent, which in turn deems the relevant purpose to exist. But records of what business?

In the case of Re Andrew Superannuation Fund v Sijabat [2023] FCAFC 6, the Full Federal Court considered for the first time the scope of this presumption as it applies to superannuation contributions made prior to bankruptcy. [...]  READ MORE →

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Gambling on Bankruptcy: AFSA’s Draft Guidance

By Harold Peng, a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

The Australian Financial Security Authority (“AFSA”) has released a draft Inspector-General Practice Guidance (“the IGPG”) on Gambling Offences. The paper explains how gambling and “hazardous speculation” may be treated where they contribute to a person’s bankruptcy, and particularly as they relate to the criminal offence contained in s 271 of the Bankruptcy Act 1966 (Cth) (“the Act”). [...]  READ MORE →

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Sink or swim? How small business restructuring is keeping the little ones afloat

By Rebecca Georges, a Law Clerks of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

With the costs of living continuing to rise, so too have operational costs for businesses.

However, the introduction of small business restructuring (SRB) has allowed a number of small businesses to swim against the tide and stay afloat at a time when insolvency rates are at an all-time high.

What is small-business restructuring (SBR)?

Small business restructuring is the process by which a company works with a small business restructuring practitioner (generally someone who is also a registered liquidator) to put a restructuring plan in place which will allow provide a greater return to creditors, whilst allowing a business to continue in operation. [...]  READ MORE →

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Official Trustee in Bankruptcy v Kent [2023] FCA 1211

By Jacob Reardon, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

In an earlier blog, we considered the concept of “the property of the bankrupt” under the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) with reference to the decision Official Trustee in Bankruptcy v Kent [2023] FCA 1211 (“Kent”). That decision asked whether a bankrupt’s right to be compensated under the Australian Financial Complaints Authority (“AFCA”) compensation scheme could vest in a trustee in bankruptcy. While Rares ACJ held this was not the case, it is worth considering the claim brought by Mr Kent in more detail and the reasons for the Court’s decision. [...]  READ MORE →

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The Death of Addbacks

In the recent 2025 Full Court Judgment Shinohara & Shinohara [2025] FedCFamC1A 126, the Court dealt with the issue of addbacks relating to property settlements in light of recent legislative amendments. At trial, the Court departed from its traditional approach of adding back assets in the parties’ property pool for division.

Prior to the s 79 amendments introduced by the Family Law Amendment Act 2024, if one party had spent or lost funds or property prior to the separation, the Court would sometimes treat the assets as if they still existed and would include them in the total pool of assets in the balance sheet as an “addback” to then be divided between the parties. [...]  READ MORE →

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High Court’s pool-proof orders: Lessons from Morgan v McMillan

By Stephen Mullette, a Principal, Rebecca Georges and Amelia Fearnside, Law Clerks of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

In the recent decision of Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33 (“Morgan v McMillan”), the High Court provided specific guidance regarding the role and requirements of pooling orders.

What is a “pooling order”

“Pooling” is the process of combining the winding up of multiple companies in a corporate group as one large liquidation, for the benefit of unsecured creditors of all of the entities in the group. [...]  READ MORE →

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Development Control Orders: Validity Matters More Than Ever

A recent decision by the NSW Land and Environment Court in Kingfisher Properties Pty Ltd v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher Case) is a timely reminder that development control orders (DCO) must adhere to statutory requirements.

In this case, the Court reduced a $100,000 penalty to just $9,000 after finding that the DCO issued went beyond the powers permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

Background

Kingfisher Properties Pty Ltd (Kingfisher) was a company that built a carport without obtaining the necessary development consent for the construction. Northern Beaches Council (Council) issued a DCO requiring Kingfisher to remove the carport. Initially, this was done via a Compliance Order under item 11, part 1 of Schedule 5 of the EP&A Act. However, a Compliance Order can only be used when a planning approval exists but has not been complied with. Given there was no planning approval in this instance this was not the appropriate order to issue. [...]  READ MORE →

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New Proposed ‘Housing and Productivity Contribution Scheme Works-in-Kind Guideline’

On 1 October 2023, the NSW Government introduced the Housing and Productivity Contribution Scheme (HPCS), which enables the NSW Government to collect housing and productivity contributions from residential, commercial, and industrial developments to fund state and regional infrastructure within the following regions:

  • Central Coast
  • Greater Sydney
  • Illawarra-Shoalhaven
  • Lower Hunter

Under Part 3 of the Environmental Planning and Assessment (Housing and Productivity Contributions) Order 2024 (HPC Order), housing and productivity contributions are ordinarily made as monetary contributions. However, clause 18(2) permits developers, by agreement with the Minister, to dedicate land or carry out capital works (or both) for regional infrastructure (Works-in-Kind), in whole or in part, as an alternative to meeting their monetary contributions. [...]  READ MORE →