This week’s TGIF considers the decision in Strawbridge (Administrator), in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472 where the Federal Court made orders absolving the administrators of retailer Colette from personal liability for rent for a two week period, due to the COVID-19 pandemic.

This week’s TGIF examines the recent changes to Australia’s insolvency regime, the potential implications for business and considerations for creditors in light of the impact from COVID-19.

The Australian Government has now passed theCoronavirus Economic Response Package Omnibus Bill 2020. The bill was fast-tracked through both houses of parliament with bipartisan support on 23 March 2020 and makes significant changes to Australia’s insolvency regime over the next six months.

What happened?

优先清算权条款是境外风险投资项目的常见条款，随后逐渐在国内私募股权投资文件中采用。很多投资人关心，这一舶来品能否获得中国司法机关的认可，我们简要分析如下：

一、什么是优先清算权

优先清算权，是指公司清算时，部分股东优先于其他股东获得剩余财产分配的权利；或者，在约定的“视同清算事件”发生时，部分股东优先于其他股东从公司获得收益的权利，“视同清算事件”通常包括公司合并、被并购、出售控股股权、出售主要资产等事件。

在私募股权投资项目中，投资人为保障其自身权益采用优先清算权条款，目的是：在公司经营不善遭遇清算时，投资人可以优先拿回一些补偿；在投资人无法通过公司上市退出，发生公司被并购等“视同清算事件”发生时，其能够优先收回其投资成本和一定程度的投资回报，实现资产变现。该条款可谓投资人的“分钱利器”。

二、如何看待该条款效力

《公司法》第34条明确规定股东可以自由约定“利润分配”的比例。该条规定：“股东按照实缴的出资比例分取红利；公司新增资本时，股东有权优先按照实缴的出资比例认缴出资。但是，全体股东约定不按照出资比例分取红利或者不按照出资比例优先认缴出资的除外。”

This week’s TGIF considers the decision in Dudley (Liquidator) v RGH Construction Fitout & Maintenance Pty Ltd (No 2) [2019] FCA 1355, where the Court exercised its discretion to cure a procedural irregularity in a mothership proceeding.

This week’s TGIF considers the latest chapter in the story of Legend International Holdings Inc, where the Court of Appeal considered whether Legend was insolvent, whether mining tenements held by Legend’s subsidiary constituted ‘readily realisable assets’, and whether various deeds entered into by Legend were void as uncommercial transactions.

This week’s TGIF examines a recent decision of the NSW Supreme Court which considered whether funds held in certain bank accounts of a failed Ponzi scheme should be returned to investors or paid to creditors of the companies.

What happened?

Since freezing orders were obtained by ASIC in 2017, details surrounding the infamous Courtenay House ‘Ponzi’ scheme operated from a small office at Westfield in Bondi have slowly emerged.

This week’s TGIF article considers the case of Kelly, in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 5) [2019] FCA 1341, in which liquidators of two linked investment companies in Australia and New Zealand sought to hold concurrent hearings in the Federal Court and in the High Court of New Zealand.

What happened?

This week’s TGIF considers the decision in Dudley (Liquidator) v RHG Construction Fitout & Maintenance Pty Ltd [2019] FCA 1355, which serves as a reminder of the steps to be taken before commencing a ‘mothership’ preference claim proceeding.

This week’s TGIF considers a refusal by the Federal Court to declare void or terminate a DOCA on the grounds of alleged prejudice & injustice or due to omissions in the administrator’s report to creditors.

Background

R Developments Pty Ltd (the Builder) operated a residential construction business and entered into a contract for the construction of a residential property in 2012.

This week’s TGIF considers the circumstances in which a special purpose liquidator will be appointed to investigate claims the liquidator has already determined are ‘not viable’ in the decision in Williams & Kersten Pty Ltd v Walton Constructions (Qld) Pty Ltd (in liq), in the matter of Walton Constructions (Qld) Pty Ltd (in liq)