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FAQs – How Our Divorce Lawyers are Responding to Covid

Chloe Elkerton, one of our divorce lawyers answers some frequently asked questions on how our family law team and the Family Court is responding to Covid.

Are you still seeing clients?

Yes, we are still seeing clients! Although our team is working from home at the moment, we have quickly adapted to the changes and have implemented the technologies to be able to provide you with advice via telephone or video conferencing. Face-to-face consultations with your divorce lawyer can also be arranged where necessary in our conferencing rooms which are spacious enough to allow for social distancing.

Can I still get my Court documents witnessed?

Recent changes in the law regarding the witnessing of documents mean that you may not be required to sign a hardcopy of your family law documents. An electronic signature may be used in place of a physical signature and witnessing may now take place over video conferencing. Our team is currently using the Zoom and Whatsapp platforms to witness Court documents.
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Virgin Australia – What Now?

By Anica Cunanan, Law Clerk and Darrin Mitchell, Senior Associate, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

In our first article on the voluntary administration of Virgin Australia we looked at the appointment of the voluntary administrators and the impact the appointment would initially have on the company.

We also looked at the role of receivers and external administrators including liquidators, and voluntary administrators, defining the roles that the different types of administrators can play in the restructuring of a company in distress. Our first article can be found here.

Virgin Australia is at present under voluntary administration. There are three possible outcomes when a company enters voluntary administration. Either the company is returned to the directors (which is rare); enters into a deed of company arrangement (‘DOCA’), or it is placed into liquidation. The decision is ultimately up to the creditors at the second meeting under the administration.

When a company is in administration, the administrator’s role is to investigate the company’s financial affairs and through this information, deal with any proposal for a DOCA on behalf of creditors of the company. The administrator will recommend the best plan for the creditors of the company, by comparing the outcome under any proposed DOCA, with that which is likely in a winding up. If the company is continuing to trade (like Virgin Australia) then the administrator takes on the responsibility for any decisions which need to be made, together with any liabilities incurred during this time.
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COVID-19 –What Debt will Scuttle Passage to the New Safe Harbours?

By Ellen Ferris, a Solicitor in Matthews Folbigg’s Insolvency, Restructuring and Debt Recovery Group.

Amendments in March of this year have brought about changes to the Corporations Act 2001 which allow for an additional temporary safe harbour to protect directors from insolvent trading, –  see our blog here.

However, companies do not automatically qualify for the protection. To qualify, the debt must be incurred as follows:

  • In the ordinary course of the company’s business;
  • During the six month period starting from the date the new law commenced (being 24 March 2020); and
  • Before any appointment of an administrator or liquidator.

The evidentiary burden of proof is on the person seeking to rely on the safe harbour relief, which means that it will be up to directors to make sure they obtain and keep evidence that their debt meets the criteria.

According to the explanatory memorandum in respect of the amending legislation, a director will be taken to have incurred a debt in the ordinary course of business if the debt “is necessary to facilitate the continuation of the business during the six month period that begins on commencement of the subparagraph”. This is narrower than the criteria for the existing safe harbour provisions, which focus on debts incurred in the pursuit of a course of action likely to lead to a better outcome for the company than liquidation. The Explanatory Memorandum gives the following examples for debts incurred in the ordinary course of business:
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COVID-19: Will my hearing go ahead? – Part 3

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

This is part 3 of our series on what will constitute valid grounds for an adjournment of a pending hearing, due to COVID-19 and the global coronavirus pandemic.

In Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64 the Plaintiff sought an adjournment of the trial hearing, arguing that he was an ‘at risk’ person because he suffered from leukaemia. Doctors had recommended that he remain isolated.

Submissions were made about the Plaintiff’s legal team being at risk, as well as the Defendant’s senior counsel withdrawing because she was at risk and could not fly down for the hearing. However, those matters were expressly not considered.

The court did consider that a lot of the hearing could be conducted from a remote location. However, on balance the Court granted the adjournment application, based on the Plaintiff’s right to observe the hearing and the need to provide prompt instructions. The Court drew a distinction between final hearings and other court procedures:
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COVID19 – IP Australia provides relief by way of extensions

We are in an unprecedented times; however, steps are being taken by the Government departments, such as IP Australia, to provide relief to their customers and relieve some of the burden and/or financial strain on applicants.

IP Australia, as of 22 April 2020, will be providing relief to applicants by granting free extensions of time, in respect of most applications and processes.

The extensions of time will provide up to an additional 3 months on any deadline required and the fee for such applications will be waived by IP Australia. IP Australia are even in the process of providing refunds to those who have been impacted by COVID-19 and have lodged extension applications without the fee waiver.

If you would like to discuss how the relief provided by IP Australia may be able to assist you, or if you require assistance with any intellectual property matter, or would like assistance with lodging an application for an extension of time, please contact our Intellectual Property team, Simone Brew and Hayley Hitch.
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COVID-19 and Corporate Insolvency: What does an increase in corporate insolvency mean to creditors?

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

In these difficult times, recent legislative amendments provide assistance for debtors, but risk for creditors. Going forward, it will be important for creditors to carefully monitor their credit policies. Creditors are likely see more spikes in default rates over the next months while government restrictions and businesses’ staff isolation plans remain in place. Where a debtor is placed into external administration, they should be aware of their rights (and duties) during the insolvency process.

Creditors should take note of the changes to the bankruptcy and insolvency regimes designed to protect debtors during the coronavirus period. The changes will limit options to creditors in respect of certain enforcement action. They include:

  1. An increase in the threshold for issuing statutory demands from $2,000 to $20,000;
  2. An increase in the threshold for issuing bankruptcy notices from $5,000 to $20,000;
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Wills and Estate Planning in a Time of Uncertainty

As the COVID-19 crisis plays out before us with each day bringing new reasons for anxiety and uncertainty, we understand that there is concern in the community surrounding the implications of the outbreak. People are worried and we are trying to help.

The imponderable concern people have now is ‘how long will it take for the virus to be brought under control’. The immediate concern people have is for the health and safety of their family and themselves.

Part of the answer to achieving a good situation for yourself and your family is to make sure that you have estate planning in place.  As is always recommended, estate planning includes financial, personal and health matters, including Power of Attorney and Guardianship

We are here to support you.

We have implemented our plan to minimise the risk of the virus spreading among our team members and from our team members to our clients.
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COVID-19 – Financial Assistance for NSW Businesses

COVID-19 – Financial Assistance for NSW Businesses

NSW businesses may be able to access one or more of the financial assistance packages offered by the NSW Government (excluding relief already provided by the Commonwealth) including:


In brief, energy businesses servicing NSW are expected to:

  • offer payment plans/hardship arrangements to all residential and small business customers under financial stress
  • not disconnect any customers under financial stress without their agreement before 31 July 2020 (and potentially later)
  • not disconnect any large business customers without their agreement if the customer is on-selling to residential and small business customers
  • delay debt collection until 31 July 2020
  • modify existing payment plans
  • waive fees such as disconnection, reconnection and contract break fees for small business that have ceased operation until at least 31 July 2020
  • prioritise safety of customers who require life support
  • maintain up-to-date communications with customers regarding the above
  • minimise outages

What you can do when you are under financial distress:
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