Insolvency

2007
"Trustbusters: Asset protection and the art of the alter ego entity - the Richstar decision" by Stephen Mullette
The Federal Court decision in ASIC v Carey (No 6) (“Richstar”) has caused some consternation amongst those who have long sought the shelter of discretionary trusts for protection of assets from the reach of creditors. Stephen Mullette provides a comprehensive analysis of the Richstar decision, from the dual perspectives of asset protection structuring and insolvency practice. Originally published in Australian Insolvency Journal, January-March 2007.

2006
"Frontline: the family home" by Stephen Mullette
The Cummins case will already be familiar to many - bankrupt barrister, didn't lodge a tax return for 45 years, transferred assets to his wife and family trust, bankruptcy trustees had to go to the High Court to get the assets back. The tax avoidance and abuse of the Bankruptcy Act caught everyone's attention, and led to recent reforms to the Act. In this article, Stephen Mullette discusses the asset protection element of the High Court's decision. Mr Mullette explains the significant ramifications not only for bankruptcy trustees, but also professionals in their own arrangements and those offering advice, including financial planners, lawyers and conveyancers. Originally published by The Argyle Partnership - Lawyers in May 2006. This article was published in CCH on 29th May 2006.

"Setting the record straight on bankruptcy notices" by Stephen Mullette
In a critical decision for all bankruptcy matters, the High Court has unanimously restored come sanity to what must be done to create a valid bankruptcy notice. Stephen Mullette discusses the ramifications of Adams v Lambert. Originally published in the Law Society Journal, July 2006.

"Your Money or Your Wife (... or husband … or significant other?)" by Stephen Mullette
One might be forgiven for concluding that the Government is determined to force married couples, faced with the bankruptcy of one of them, to separate or bear the financial consequences if they stay together. There is a clear preference on the part of Parliament for conflict issues between family law and bankruptcy to be resolved in the Family Court. However recent and proposed developments have gone further than this, in their effect, and arguably, further than was intended. Stephen Mullette discusses a 'trifecta' of developments: the Bankruptcy and Family Law Legislation Amendment Act 2005, Bankruptcy Legislation Amendment (Anti-Avoidance) Act 2006, and recent superannuation and bankruptcy proposals. This article was published by the Argyle Partnership in August 2006, as a follow up to another article by Mr Mullette that appeared in IPAA Journal, June 2006.

2005
"Fee Hi Ho Hum" by Stephen Mullette
Fees are once more the focus of close scrutiny by the Courts. In this article, Argyle Partnership Associate Stephen Mullette provides an in-depth analysis of the recent Stockford decision, drawing lessons for insolvency administrators and lawyers regarding their fee arrangements and disclosure requirements. Originally published in Argyle Partnership Insolvency Bulletin, February 2005; also published in IPAA Australian Insolvency Journal, March 2005.

2004
"Bankrupt barrister "beggars belief" but beats bankruptcy trustee, by Stephen Mullette
In this article, Argyle Partnership Senior Associate Stephen Mullette offers an extensive analysis of the Full Federal Court's decision in Cummins v The Trustees of the property of John Daniel Cummins, a Bankrupt [2004] FCAFC 191 (30 July 2004). In Cummins, the fact that a barrister had omitted to lodge tax returns for 45 years, could not be used to infer that he may have had a debt to the Tax Commissioner. In this way, the bankrupt’s wife and family trust were able to overturn a trial judge’s decision that transfers of the bankrupt’s property to them had been for the purpose of defeating the bankrupt’s creditors. This case is a salutary lesson on both the evidence required to challenge the transfer of assets by those who subsequently become bankrupt, and also on the difficulties facing bankruptcy trustees as they endeavour to recover assets for the benefit of creditors.

"Is this the end of Asset Protection" by Stephen Mullette
Squarely within the the government's sights are bankrupts who are still able to enjoy the benefit of assets acquired with their money or effort, by arranging their affairs so that assets are not held in the bankrupt's name. While this has long been the basis of financial planning and "asset protection" advice, Stephen Mullette of The Argyle Partnership explains how proposed law changes represent a "fundamental shift away from the perceived legitimacy of these arrangements". This article originally appeared in the 23rd June 2004 edition of CCH's Australian Corporate News.

"When is it bad to throw out your litter?" by Stephen Mullette
This case study of the decision in Hadfield v Commonwealth Bank is a timely reminder of the responsibility of a mortgagee when selling a mortgagor's property. The usual elements are there - inadequate advertising, misdescriptions and omissions in the sale process. There is also the valuable lesson that in certain circumstances a mortgagee may need to spend money to improve the property to obtain a better price at auction. And the case also contains an interesting tale of how one person's pile of manure can be another person's agricultural investment. This article originally appeared in the 19th April 2004 edition of CCH's Australian Corporate News.

"Who will win in bankruptcy, family law merger?" by Nabil Wahhab
Legislation that will allow the Family Court to hear cases that involve bankrupts was re-introduced last month in an effort to simplify proceedings. However, the amendments could end up creating more confusion. This article originally appeared in The Lawyers Weekly, December 3, 2004. Nabil Wahhab is a senior associate at the Argyle Partnership and an accredited specialist in family law.

2003
"The Double-Edged Sword" by Stephen Mullette
Directors' and Officers' Insurance Policies are one of the most important weapons available to those in charge of companies confronted by litigation and investigation. But indemnity under such policies can be a double-edged sword in which directors find their own insurer out to make a case against them. The existence of a valid policy, and a claim covered by that policy, does not always mean an insurer is obliged to pay up . 2003.