In the matter of Humur Pty Limited

[2020] NSWSC 1759

Supreme Court of NSW

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For Australian Law.

A liquidator bringing an insolvent trading claim must adduce admissible evidence establishing each element of the claim, including that debts were actually incurred at the times alleged and that the company was insolvent at those times; invoices issued by third parties are not books kept under the Corporations Act and do not attract the prima facie evidence presumption under s 1305.
A contractual liability is incurred for the purposes of ss 588G and 588M when the contract giving rise to it is entered into, not when the invoice for payment is later issued; where a disputed debt lacks an established factual or legal basis, any prima facie evidence of the debt is displaced.
An assignment by a liquidator under s 100-5 of the IPSC that imposes obligations on the liquidator extending beyond three months arguably requires Court approval under s 477(2B); the question whether a statutory cause of action under s 588M can be further assigned by the initial assignee (not being an external administrator) was raised but left unresolved.