James has experience in legal practice for three continuous decades acting in litigation, investigations, complex and other insolvency and recovery, corporate restructuring and turnarounds. His clients include creditors, debtors, SMEs, government owned corporations, investors, directors and senior executives, manufacturers, utilities, child care operators, property developers, food and agribusiness participants, co-ops, not for profit organisations, miners and mining service companies, banks, other financial institutions and publicly listed companies.
In the above context, James:
- Provides tailored corporate/corporate governance advisory services.
- Acts in hostile corporate situations such as requisitioning and defending board spills and other contentious company meetings.
- Is asked to step in when things go wrong to implement solutions aimed at rectifying a deteriorating legal situation and implement a risk management strategy moving forward.
- Acts for sophisticated clients in playing a front end legal role to provide advice that ‘reverse engineers’ his litigation and/or insolvency experience aimed at managing risks before they materialise by enabling correct choices to be made and setting up defences and passing on risk, if claims ultimately emerge.
- Provides pre-insolvency advice to boards and senior management to correctly position a business to set up a softer landing if the business becomes insolvent.
- Acts for insolvency practitioners and turnaround specialists in advising them based on learnings from his relevant blend of experience, tailored advice and forceful implementation.
- Acts on behalf of receivers, voluntary administrators, liquidators and trustees in bankruptcy in advising on distressed asset sales, public examinations, litigating actions aimed at corporate recovery and clawing back assets in the winding up process, procuring litigation funding and after the event insurance, advising how to rule on proofs of debt, attending creditor meetings, advising in relation to voting and other meeting procedures, advising on professional and statutory duties and obtaining protective court directions and approvals.
- Is conscious of the need to work cohesively with other advisors and be a team player on large matters.
- Is well aware of whole of Government and regulatory issues that form a back drop to QBCC work.
- During that time, he worked on a number of insolvency matters for QBSA (a precursor of QBCC) such as Richard Waters, Freedom Homes, LJ Hooker and the like.
- Has done legal work for QERU, Queensland Rail, Ergon, ENERGEX, SunWater and other participants in the public sector.
James has been recognised by his peers as one of the Best Lawyers in Australia for the areas of Commercial law and Corporate law (2014 – 2020) and Corporate/Governance practice (2016 – 2020).
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Recent experience includes:
- Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation)  HCA 48 – This was a high profile test case for insolvency practitioners (who we acted for) and the Commissioner of Taxation. The High Court of Australia decided in favour of Australian Building Systems Pty Ltd (In Liquidation) (ABS) against the Commissioner of Taxation. Counsel for ABS submitted that the Income Tax Assessment Act 1936 (Cth) (tax legislation) imposes a personal liability on the agent or trustee which is confined by the words “to pay tax which is or will become due”. That imposition, on his submission, required for its operation certainty as to the amount of the tax due. The section did not impose any personal liability in respect of a failure to comply with s 254(1)(a) or (b). The personal liability has a narrower compass. The HCA accepted that submission and found that an understanding of the term “tax which is or will become due” in s 254(1)(d) of the tax legislation as referring to tax which has been assessed and is or will become payable, is therefore consistent with an established interpretation of the word “due” as used in the tax legislation.
- Fletcher and Ors v Fortress Credit Corporation (Australia) II Pty Limited  QSC 33 – The QSC has previously made orders preventing the defendant namely, Fortress from dealing with assets up to an amount of $40 million until the trial of the proceedings. After those orders were made, there were two important events. The first was that the Full Court of the Federal Court set aside the order by which the funding agreement was approved and remitted the matter to the primary judge for reconsideration. The High Court refused special leave to appeal against that judgment. This called into question the value of the usual undertaking as to damages given by the liquidators to obtain the freezing order. The second event was that after the freezing orders were made, the Supreme Court of New South Wales appointed Mr D J Kerr (who James acted for) as an additional liquidator of the plaintiff company for certain purposes. That appointment was made on the application of the present plaintiffs liquidators because of a perceived conflict of duty and duty, or perhaps duty and interest, from the first plaintiffs also being the liquidators of both Octaviar Limited and Octaviar Administration Pty Ltd. Mr Kerr was appointed to represent the interests of the plaintiff company namely, Octaviar Limited in pursuing any claims against the defendant (Fortress) as presently pleaded in the proceedings. The order made provision for Mr Kerr to formally notify Mr Fletcher and Ms Barnet of his intention to take any steps such as taking over the representation of the plaintiff company in these proceedings. Mr Kerr had not at that point given such notice. After weighing up the balance of convenience the QSC stayed the proceedings for 3 months to enable the recent events to be absorbed, Mr Kerr to seek funding and determine whether or not he would formally notify Mr Fletcher and Ms Barnet of his intention to take any steps such as taking over the representation of the plaintiff company in these proceedings. https://www.queenslandjudgments.com.au/case/id/76441?mview=thomsons|&u=
- Milfull v Terranora Lakes Country Club Limited (In Liquidation)  FCA 1637 – This matter had a lengthy history. Proceedings were instituted on 25 August 1995. As is unfortunately common in representative proceedings, there followed a considerable number of interlocutory applications by James’ client namely, the first respondent Terranora Lakes Country Club Limited (In Liquidation) (Club), which principally concerned the applicant’s pleading. Mediation which took place in December 2003 was however successful in part. Agreement was reached with Club, this applicant and four applicants in related representative proceedings and another company which led to the execution of a Deed of Compromise. The Club held a finite fund and instead of exhausting the fund the Club agreed to settle case by paying dividends to the applicant class on the one hand and trade and other general creditors on the other hand.
- In the matter of Octaviar Administration Pty Ltd (in liq)  NSWSC 516 – Obtaining a NSWSC direction that special purpose liquidator is justified in accepting an offer to compromise the Queensland Fortress proceedings. http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2015/516.html
- In the matter of Octaviar Limited (in liq) (OL); In the matter of Octaviar Administration Pty Limited (in liq) (OA)  NSWSC 16 – James acted for the Special Purpose Liquidator of OL (SPL) in this case. The NSWSC decided it should not give directions under s 479(3) which would have the effect of retrospectively ratifying what the OA Liquidators had already done. The OA Liquidators would be justified in proceeding henceforth on the basis that they validly entered into the Fortress Funding Deed and that that Deed was valid, effective and binding on OA, notwithstanding the judgment of the NSWCA. The OA Liquidators would be justified in adopting the position that OA is entitled to receive payments pursuant to clauses 7.2, 7.3 and 7.5 of the Fortress Funding Deed and should be given advice to that effect. The OA Liquidators would be justified in releasing the Castle Charge, and in not releasing, at least for the time being, the other charges assigned to OA by Fortress. To the extent that the General Purpose Liquidators of OL (GPLs) may require leave to continue to act, where those charges have been assigned to OA, such leave should be granted. The OA Liquidators were entitled to negotiate with the Commissioner a resolution of OA’s liability as garnishee without reference to the SPL, and did not need a direction to do so. They should not be authorised to negotiate with the Commissioner, so as to bind OL and to the exclusion of the SPL, in respect of the OL Proof into OA. The SPL’s powers should be expanded to include (a) calling for, assessing and administering any proof of debt lodged by OA in the estate of OL, without previous limitations; (b) representing the interests of OL in respect of any proof of debt that may be appropriate for it to lodge in the estate of OA (including by appealing the decision of Mr Fletcher and Ms Barnet as the liquidators of OA rejecting OL’s proof dated 11 April 2011 for approximately $514m; and (c) representing exclusively the interests of OL in respect of OL’s claims to be a creditor of OA, and OA’s claims to be a creditor of OL. The GPLs should be required to provide him with such assistance in the winding up of OL as he reasonably requires in his capacity as SPL. There should not be any formal deferral of the SPL’s enlarged powers. https://www.caselaw.nsw.gov.au/decision/56afdda4e4b0e71e17f4eabb