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Bruce Hambrett

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Court of Appeal sets the record straight

The key point

On March 9, 2017, a full bench of the New South Wales Court of Appeal handed down a significant decision affecting approach to judicial review and approval of liquidator remuneration. Significantly, existing tension between decisions of different judges at first instance, and between NSW and Federal courts, has been resolved.  

With the Australian Taxation Office very active in winding up companies for unpaid taxes, it is now commonplace for insolvency professionals to be faced with pending winding up petitions when considering an appointment as voluntary administrator.  Obtaining an adjournment of the petition is often the first critical task in an administration.

But there is often little appreciation of the Court’s expectations as to the factors that will justify an adjournment of the petition, to enable the administration to proceed; adjournments are often sought hastily and without much thought.  This note sets out – with the benefit of the most recent decisions – the test for an adjournment, the expectations on supporting affidavit evidence and the relevant factors to address in that affidavit.