在 Sian Participation v. Halimeda International [2024] UKPC 16一案中，布里格斯勋爵（Lord Briggs）和夏宝伦勋爵（Lord Hamblen）代表委员会作出判决，认可了关于清盘呈请的传统做法。两位法官确认，即使产生债务的合同包含仲裁条款，亦不能削弱债务人证明债务确实存在实质性争议的责任（下称“可审理问题标准”）。
该案中，委员会的观点与香港高等法院暂委法官王鸣峰资深大律师（William Wong SC）在 Dayang v. Asia Master Logistics [2020] 2 HKLRD 423 一案中的观点（见判词第82、98段）如出一辙，可归纳如下：
In Sian Participation v. Halimeda International [2024] UKPC 16, Lords Briggs and Hamblen, delivering judgment on behalf of the Board, endorsed the traditional approach to winding-up petitions. Their Lordships confirmed that a debtor’s duty to show that the debt is genuinely disputed on substantial grounds (“Triable Issue Standard”) remains undiluted even if the contract from which the debt arose contains an arbitration clause.
In this week’s TGIF, we consider the recent case of Vita Group Ltd, in the matter of Vita Group Ltd [2023] FCA 400, in which his Honour Justice Jackman outlined practical changes to the way schemes of arrangement should be implemented through the Federal Court to make them simpler, faster and more cost efficient.
Key takeaways
In this week’s TGIF, we consider the Federal Court’s recent decision inFotios (Bankrupt) v Helios Corporation Pty Ltd (No 3) [2023] FCA 251, and earlier decisions in the same proceedings, clarifying the current Australian position as to priorities between creditors of successive trustees.
Key takeaways
This week’s TGIF considers a recent decision in Re HRL Limited (in liq) & Anor [2022] VSC 693, in which the Court approved a success fee in addition to the liquidators’ remuneration calculated by the application of a time-based costing method.
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This week’s TGIF considers a recent case where the Supreme Court of Queensland rejected a director’s application to access an executory contract of sale entered into by receivers and managers on the basis it was not a ‘financial record’
Key Takeaways
This week’s TGIF looks at the decision of the Federal Court of Australia in Donoghue v Russells (A Firm)[2021] FCA 798 in which Mr Donoghue appealed a decision to make a sequestration order which was premised on him ‘carrying on business in Australia' for the purpose of section 43(1)(b)(iii) of the Bankruptcy Act 1966 (Cth) (Act).
Key Takeaways
This week’s TGIF considers an application to the Federal Court for the private hearing of a public examination where separate criminal proceedings were also on foot.
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This week’s TGIF looks at a recent decision of the Victorian Supreme Court, where a winding up application was adjourned to allow the debtor company to pursue restructuring under the recently introduced small business restructuring reforms.
Key takeaways
Unlike the GFC, which was essentially a liquidity crisis, Australia is likely to face a gradual increase in business insolvencies, rather than the feared ‘insolvency cliff’, as the Federal Government’s COVID-19 stimulus measures are wound down at the end of March.