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

一、问题的提出

债务人向债权人借款,由保证人提供保证担保。借款到期后,债务人与保证人均未偿还该笔借款。后法院裁定受理保证人的破产申请,债权人因此向保证人的管理人申报债权,要求保证人就债务人所欠借款及利息承担保证责任。管理人审查并确认了该笔债权。(简见以下表1案型法律关系表)根据《最高人民法院关于适用〈中华人民共和国民法典〉有关担保制度的解释》(下称“《民法典担保制度解释》”)第22条之规定,[1]保证债权应当自保证人的破产申请受理时起停止计息。与债务人破产时保证债权随同主债权停止计息不同的是,保证人破产导致保证债权停止计息,却不能反向及于主债权也停止计息。其后债务人向债权人清偿了部分债务。此时,管理人将面临如下难题:在主债权未停止计息的情况下,债权人获得债务人部分清偿后,在保证人的破产程序中,管理人先前认定的债权数额是否须要调整?如果须要调整,应该如何进行调整?鉴于该问题在实务中相对较为前沿,笔者曾多次尝试检索与之相关的法规、判例、理论文献、实务文章等,对于解决该问题的资料寥寥无几。虽无前人的解决方案可供参照,但该问题仍然亟待解决。在缺乏相应法律规范的情况下,下文将通过民法基础理论的推演,尝试为解决这一问题提供思路。

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.

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.

Key takeaways

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

This week’s TGIF considers the decision of the Supreme Court of New South Wales In the matter of Gearhouse BSI Pty Ltd [2021] NSWSC 98. In this case, one of the joint venture parties obtained an order to wind up the joint venture on the basis that the underlying purpose of the business had failed.

Key takeaways

This week’s TGIF considers an application to wind up a company on just and equitable grounds. The Court declined to make the order, finding the suggested deadlock had an air of artificiality and the application was infused with self-interest.

Key takeaways