Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.

具有高风险高收益特征的私募基金自诞生以来吸引了无数投资者，它帮助很多投资者在短期内取得了可观的收益，但高收益必然伴随着高风险。在私募基金未取得理想的收益或甚至发生亏损后，部分投资者以基金管理人在募集、投资、投后管理、清算等过程中未适当履职为由，通过向监管部门投诉、提起诉讼或仲裁等方式要求基金管理人承担赔偿责任的案例比比皆是，对基金管理人的财务状况及后续展业造成了严重的不利影响。

本文结合清算过程中基金管理人可能出现的未适当履职及由此需承担的赔偿责任进行分析，以期引起基金管理人对基金清算工作的高度重视，避免自身及从业人员的赔偿责任。

一、延迟、怠于履行清算义务的赔偿责任

1. 未适当履职的情形

前言

私募基金“募投管退”等各阶段时常经历来自市场、政策及监管等种种不确定风险，这期间不仅基金管理人付出了大量的人力、物力以保障基金的正常运行和基金财产的安全，投资者也在默默期待取得理想的投资收益，而清算退出正是私募基金管理人与投资者迎来最终投资结果的阶段，清算完毕也意味着私募基金生命的终结，其重要性对于各方来说不言而喻。

一、私募基金清算的意义

私募基金的清算完毕代表着基金管理人、托管人及投资者等多方主体间法律关系的正式终结，对基金管理人、托管人而言，基金清算后将大幅减少其在投后管理中所投入的精力，且所应对的监管也会相应减少；对投资者而言，在基金清算后可以取回现有投资财产，保障自身资金的流动性；针对基金行业来说通过清算淘汰了部分“劣质”私募基金，彰显了优胜劣汰法则，可以使行业整体的发展越来越健康。

Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.

In a recent case, the Victorian Supreme Court said that an accountant ‘would know well that a statutory demand involves strict time frames for response and potentially very significant consequences for a company’. The accountant failed to take appropriate steps to inform the company of the statutory demand.

The statutory demand process

If a company does not comply with a statutory demand within 21 days of service, it is deemed to be insolvent and the creditor may proceed to wind up the company.

A recent court decision considers the legal principles and sufficiency of evidence when a court-appointed receiver seeks approval of their remuneration.

A court-appointed receiver needs court approval for the payment of their remuneration. The receiver has the onus of establishing the reasonableness of the work performed and of the remuneration sought.

A Supreme Court in Australia has dismissed an application by a UK company’s moratorium restructuring practitioners for recognition of a UK moratorium and ordered that the company be wound up under Australian law.

The decision provides insights into the interaction between cross-border insolvencies and the winding up in Australia of foreign companies under Australian law.

Introduction

In the matter of Hydrodec Group Plc [2021] NSWSC 755, delivered 24 June 2021, the New South Wales Supreme Court:

It is possible for a trustee in bankruptcy to make a claim to property held by a bankrupt on trust. For example, by lodging a caveat over a home that is held on trust.

A trustee in bankruptcy may be able to make a claim, relying on the bankrupt’s right of indemnity as trustee of the trust. This is because the bankrupt’s right of indemnity, as trustee, is itself property that vests in the trustee in bankruptcy under the Bankruptcy Act 1966.

Explaining a trustee’s right of indemnity

A 139ZQ notice issued by the Official Receiver is a powerful tool for trustees in bankruptcy seeking to recover a benefit received by a third party from an alleged void transaction. These include transactions such as an unfair preference, an undervalued transaction, or a transaction to defeat creditors.

Given the adverse consequences for noncompliance, a recipient of a 139ZQ notice should take it seriously and obtain legal advice without delay.

Section 139ZQ notices

Section 561 of the Corporations Act 2001 (Cth) provides that accrued employee entitlements must be paid in priority to the holder of a circulating security interest in a winding up.

Until recently, it was unresolved whether the property subject to a circulating security interest should be determined as at the date the liquidation began, on a continuous basis, or at some other unidentified date.