In March 2019, Liquidators were appointed to The Australian Sawmilling Company Pty Ltd (TASCO) by way of a creditors’ voluntary winding up. TASCO owned a large lot of contaminated land – there were stockpiles of construction and demolition waste resulting from a former licensee conducting a materials recycling business.

The Bankruptcy Code confers upon debtors or trustees, as the case may be, the power to avoid certain preferential or fraudulent transfers made to creditors within prescribed guidelines and limitations. The U.S. Bankruptcy Court for the District of New Mexico recently addressed the contours of these powers through a recent decision inU.S. Glove v. Jacobs, Adv. No. 21-1009, (Bankr. D.N.M.

Section 440A(2) of the Corporations Act 2001 (Cth) (the Act) requires the Court to adjourn a winding up application if it is satisfied that it would be in the best interest of creditors for the company to continue under administration rather than be wound up.

In Re Dessco Pty Ltd, the Victorian Supreme Court adjourned a winding up application for 50 days to allow time for creditors to vote on a restructuring plan.

Whilst the adjournment was opposed by the Plaintiff, the Judicial Registrar of the Court accepted the assessment formed by the Small Business Restructuring Practitioner that the company was eligible to avail itself of the new regime having regard to the criteria that must be satisfied (and the ‘just estimate’ approach adopted in respect of contingent liabilities) and the interests of the company’s creditors.

In the matter of Western Port holdings Pty Ltd (receivers and managers appointed)(in liq) [2021] NSWSC 232, Deed Administrators who were subsequently appointed Liquidators of Western Port Holdings Pty Ltd (the Company) clawed back over $2 million worth of payments made to the Australian Taxation Office (ATO) whilst the Company was subject to a Deed of Company Arrangement (DOCA).

In ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) v Michael Thomas Walton & anor,^[1] the New South Wales Court of Appeal considered the purpose for which public examination summons and production of documents can be ordered.

In In re Smith, (B.A.P. 10th Cir., Aug. 18, 2020), the U.S. Bankruptcy Appellate Panel for the U.S. Court of Appeals for the Tenth Circuit recently joined the majority of circuit courts of appeals in finding that a creditor seeking a judgment of nondischargeability must demonstrate that the injury caused by the prepetition debtor was both willful and malicious under Section 523(a)(6) of the Bankruptcy Code.

Factual Background

In a recent decision, the U.S. Bankruptcy Court for the Southern District of New York held that claim disallowance issues under Section 502(d) of the Bankruptcy Code "travel with" the claim, and not with the claimant. Declining to follow a published district court decision from the same federal district, the bankruptcy court found that section 502(d) applies to disallow a transferred claim regardless of whether the transferee acquired its claim through an assignment or an outright sale. See In re Firestar Diamond, 615 B.R. 161 (Bankr. S.D.N.Y. 2020).

Recent changes to the Property Law Act 1974 (Qld) (Act) have simplified the process for mortgagees exercising power of sale and do away with the need for a Court order.

Previously, a mortgagee was required to apply to a Court for a vesting order allowing it to exercise power of sale and to dispense with the requirement to give a Notice of Exercise of Power of Sale to the mortgagor.

InIn re Juarez, 603 B.R. 610 (9th Cir. BAP 2019), the Bankruptcy Appellate Panel of the U.S. Court of Appeals for the Ninth Circuit addressed a question of first impression in the circuit with respect to property that is exempt from creditor reach: it adopted the view that, under the "new value exception" to the "absolute priority rule," an individual Chapter 11 debtor intending to retain such property need not make a "new value" contribution covering the value of the exemption.

Background