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The economic necessity for the Australian insolvent trading prohibition

✍ Scribed by David Morrison

Publisher
John Wiley and Sons
Year
2003
Tongue
English
Weight
186 KB
Volume
12
Category
Article
ISSN
1180-0518

No coin nor oath required. For personal study only.

✦ Synopsis

This paper 1 is the second of two considering the reason and necessity for the Australian insolvent trading prohibition. Recall that the Harmer Committee Report 2 raised notions of (i) fairness, (ii) ''e¡ective regulations'' and an ''ordered legal process'' ; and (iii) a practical and convenient support of ''the economic processes of the community'' together with continuing to allow the ''accepted, entrenched and commercially justi¢ed processes'' . These notions suggested an evaluation of the insolvent trading prohibition on (i) public policy, (ii) legal and (iii) economic grounds.

The previous paper considered the interest 3 in the rights of stakeholders in circumstances where a company approaches insolvency since the test of the separate legal entity contained in Salomon v Salomon. 4 At the time of Salomon, the general approach of the legislature to commercial practice was ''creditor beware'' . This general approach was articulated by both the subsequent Loreburn and Greene Committee reports; however recommendations were nonetheless made for change in favour of creditor protection. In Australia, there have been subsequent recommendations for increased creditor protection and more speci¢c regulation in the form of the insolvent trading prohibition, resulting in section 588G of the Corporations

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