BRIEF BACKGROUND

THE FIRST INSTANCE DECISION

THE APPEAL

• The Solvency Issue – At the time that the Company made each of the SEB Redemption Payments, was the Company unable to pay its debts within the meaning of s93 of the Law?
• The Preference Issue – Were the three SEB redemption payments made with a view to giving SEB a preference over the other creditors?
• The Repayment Issues – Are common law defences available to SEB (such as the absence of unjust enrichment and change of position) or is the JOLs' claim against SEB contrary to public policy due to being founded on illegality, such that SEB should not be required to repay the claimed amounts?

The Solvency Issue

The Fraud Point

The 30 Day Point

The Future Debts Point

The Preference Issue

The Dishonesty Point

The Mistake Point

The Continuing Intention Point

The Repayment Issues

COMMENTARY

Definition of Insolvency

Recalculation of NAV

Rejection of Change of Position Defence

Footnotes