This week’s TGIF considers some ways insolvency practitioners can make their lives easier by proactively using the courts to resolve uncertainty – such as liquidators seeking appointment as receivers of trust property as in the recent Federal Court decision of Freeman; In the matter of Blue Oasis Holdings Pty Ltd [2018] FCA 822.

WHAT HAPPENED?

Liquidators were appointed to the corporate trustee of a family trust.

回购条款作为资管产品中常见的增信措施，资管新规对其有何影响？

资管新规之前，回购条款的效力得到法院普遍认可

回购条款本质上是一种逆向的、独立的交易行为，属于合同债权的范畴。其虽然具有一定的债权保障作用，但不构成债权担保的从属性，更不具有担保物权的优先受偿功能。因此，回购条款并非我国的法定担保形式。

资管新规之前，司法实践中，法院在考察当事人意思表示和内容的合法性基础上，一般会认可回购条款的合法有效性。

在“重庆国际信托股份有限公司与安徽三联实业发展有限公司等合同纠纷案”（〔2015〕渝高法民初字第00025号）中，法院认为，“《资产收益权转让及回购协议》系当事人的真实意思表示，不违反法律、行政法规的强制性规定，合法有效。结合信托公司提供的营业执照和金融许可证上载明的内容，信托公司签订的上述合同不违反金融监管部门核准的经营范围；且本案合同所涉的借款资金来源并不影响借款合同本身的效力。”

This week’s TGIF considers QBH Commercial Enterprises Pty Ltd (In liq)v Dalle Projects Pty Ltd & Ors [2018] VSC 171 in which the Court considered whether privilege can be waived by a director of a company in liquidation.

What happened?

QBH Commercial Enterprises (QBH) was placed into liquidation on 22 February 2018.

This week’s TGIF considers Swiss Re International v Simpson [2018] NSWSC 233, where the court found that three former executives of Forge Group had not engaged in misleading or deceptive conduct when trying to address a cash flow crisis.

What Happened?

In February 2014, Forge Group Limited collapsed. Up to that point, it was a publicly listed engineering, procurement and construction company operating across mining and other sectors

This week’s TGIF considers the recent case of In the matter of Umberto Pty Ltd (in liq) [2018] FCA 541,which involved an application to appoint special purpose liquidators and to obtain the Court’s approval of their funding and legal arrangements.

What happened?

This week’s TGIF considers the case of In the matter of Specialist Australian Security Group Pty Ltd (in liq) [2018] VSC 199 in which the Court considered the priority of administrators' right to an indemnity out of company property.

Background

This week’s TGIF considers Gogetta Equipment Funding Pty Ltd v Mark & Liz Pty Ltd [2018] VSC 91, which examined a priority contest between competing equitable interests in property.

What happened?

This week’s TGIF considers the case ofIn the matter of Bean and Sprout Pty Ltd [2018] NSWSC 351, an application seeking a declaration as to the validity of the appointment of a voluntary administrator.

What happened?

On 7 December 2018, Mr Kong Yao Chin (Chin) was purportedly appointed as the voluntary administrator of Bean and Sprout Pty Ltd (Company) by a resolution of the Company.

This week’s TGIF is the second of a two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.

This week’s TGIF is the first of a two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.

This first part looks closely at what the Court of Appeal did – and did not – decide in relation to how receivers and liquidators should deal with property recovered pursuant to an insolvent corporate trustee’s right of indemnity.