units

LAW4333

Faculty of Law

18 September 2017 22 November 2024

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This unit entry is for students who completed this unit in 2016 only. For students planning to study the unit, please refer to the unit indexes in the the current edition of the Handbook. If you have any queries contact the managing faculty for your course or area of study.

Monash University

6 points, SCA Band 3, 0.125 EFTSL

Undergraduate - Unit

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.

Faculty

Law

Offered

Not offered in 2016

Synopsis

This unit is essentially concerned with an exploration of the legal consequences of a corporation becoming insolvent. This includes an understanding of the formal process and consequences of liquidation; an analysis of the impact of liquidation on a corporation's property rights; consideration of the property that is available to creditors and the treatment of claims in a liquidation; an examination of the alternatives to liquidation, particularly the formal alternatives offered under the Corporations Act 2001 (Cth); and a consideration of the impact of an 'overseas' element in both liquidation and its alternatives.

Topics covered include:

  • an assessment of the nature, objectives and features of corporate insolvency law
  • an outline of the proceedings that lead to liquidation
  • an examination of the meaning of 'insolvency' and its associated problems of proof
  • the impact of liquidation on a corporation's contractual and property rights, including the operation of the law to determine which property is made available to unsecured creditors in the event of liquidation. This requires an examination of the meaning of 'property' in this context and the scheme of the legislation in determining which property is to be made available to creditors. Of particular interest here are the 'clawback' provisions which allow recover of property disposed of prior to liquidation
  • the claims which are recognised in the event of liquidation, the principle of distribution and the position of secured creditors
  • the process of deregistration of an insolvent corporation
  • the alternatives to liquidation, particularly the formal alternatives available under the Corporations Act
  • the implications of an 'overseas element' in a liquidation and its alternatives are examined, including the operation of the Cross Border Insolvency Act 2008 (Cth).

Outcomes

The objectives of this unit are to enable students to:

understand the legal impact of insolvency on a corporation's rights and liabilities, including a comparison of the way in which these issues are handled in other jurisdictions

  • critically evaluate the law relating to corporate insolvency in its broader regulatory, social and economic context,
  • demonstrate the intellectual and practical skills needed to interpret legal conclusions and professional decisions
  • identify, research, synthesise and evaluate relevant legal, factual and policy issues;
  • demonstrate cognitive and creative skills in approaching legal issues and generating appropriate responses and developing new understandings; and
  • engage in critical analysis and make reasoned and appropriate choices among alternatives.

Assessment

(a) Research assignment of 1500 words, worth 30% of the total assessment
(b) Final examination 2.5 hours plus 30 minutes reading and noting time,3500 words, worth 70% of the total assessment.

Chief examiner(s)

Associate Professor John Duns

Prerequisites

For students who commenced their LLB (Hons) course in 2015 or later:
LAW1111; LAW1114; LAW1112; LAW1113; LAW2101; LAW2102; LAW2112; LAW2111; LAW3401; LAW4169 and LAW3112

For students who commenced their LLB course prior to 2015:
LAW1100 OR LAW1101; LAW1102 or LAW1104; LAW3401; LAW4169 and LAW3112

Co-requisites

none

Prohibitions

none