In Carey v Korda [2012] WASCA 228, the Supreme Court of Western Australia Court of Appeal confirmed the rights of receivers to claim legal professional privilege.  A little over a year ago, we considered the first instance judgment in a previous TGIF article. 

THE BACKGROUND FACTS

The recent Federal Magistrate’s decision in Commonwealth Bank of Australia v Oswal [2012] FMCA 1082 reminds us that leaving a jurisdiction does not mean leaving your business behind, including the business of paying debts.

Background

Mr Oswal guaranteed a loan of $27 million from the Commonwealth Bank of Australia (CBA) to Garuda Aviation Pty Ltd (Garuda) for the purchase of a jet plane.  Mr Oswal was, and remains, a director of Garuda.

The German Insolvency Code requires the management of German limited liability companies (GmbH), stock corporations (AG) and other entities without personal liability to file for the commencement of insolvency proceedings no later than three weeks after the entity has become illiquid (zahlungsunfähig) or overindebted (überschuldet).  

The recent Supreme Court of Victoria decision in Re National Personnel Pty Ltd (in liquidation) [2012] VSC 508 confirms that the Court will take a broad approach in determining the true employer where the employer-employee relationship is confused and the liquidator is in doubt as to the identification of the employer.

Background

The recent Federal Court of Australia (Court) decision in KASH Aboriginal Corporation ICN 108 (Administrators Appointed) No 2 [2012] FCA 789 confirms that an administrator of a company who acts honestly and reasonably may be protected from personal liability for any debts incurred while carrying out an administration.

Background

Before the recent decision in Rubin and another v Eurofinance SA and others and New Cap Reinsurance Corporation (In liq) and another v AE Grant [2012] UKSC 46 (the joint appeal of two earlier cases) (the Rubin/New Cap Appeal), an insolvency judgment obtained in an Australian court could be enforced in the UK despite falling outside of the traditional common law enforceability rules.

The Rubin/New Cap Appeal has now removed this special treatment afforded to foreign insolvency judgments and the old common law rules once again apply.

Following some delay, on June 6, 2012 the European Commission finally published its Proposal for a Directive of the European Parliament and the Council establishing a framework for the recovery and resolution of credit institutions and investment firms (so-called Crisis Management Directive¹ or CMD), which — once adopted — will apply to the 27 member states of the European Union (EU), but may also have relevance for those three contracting states of the Treaty on the European Economic Area (EEA), which are not member states of the EU.

English schemes of arrangement under the Companies Act 2006 (Schemes) have been increasingly used by non-English companies as a powerful tool to restructure their financial indebtedness. Recent prominent examples of German companies that have utilized Schemes to cramdown non-consenting or “holdout” creditors in order to restructure the company’s balance sheet include TeleColumbus, Rodenstock and Primacom.

There are several reasons for this trend: