It is not uncommon for contractors, in several industry sectors, to contract with a special purpose vehicle (SPV), whose day-to-day management is effectively controlled by a parent company, and the SPV has with little to no assets beyond cash flow provided by its parent. In this article we look at what a claimant could do outside of the traditional insolvency process in circumstances where the SPV goes into a form of external administration such as administration or liquidation and there are no assets available to the external administrators.
In the recent decision of Re PBS Building (Qld) Pty Ltd [2024] QSC 108, the Supreme Court of Queensland considered for the first time the operation of the State’s new project and retention trust account regime in the context of an insolvency. The decision provides useful guidance to insolvency practitioners and subcontractors as to their rights in relation to trust accounts established by an insolvent head contractor.
What is the so-called "creditor duty"?
This is the duty, introduced into English common law by the leading case of West Mercia Safetywear v Dodd1 in 1988, of company directors to consider, or act in accordance with, the interests of the company's creditors when the company becomes insolvent, or when it approaches, or is at real risk of insolvency.
Background
在经济下行的时候,原来一些质地不错的企业也会陷入困境。对于困境企业而言,通过破产重整焕发生机,也许是最后一根救命稻草;对于投资人而言,未来真正的赚钱机会,也将出现在更多、更复杂的破产重整项目中。今天,我想跟大家谈谈破产重整投资的趋势、挑战与未来。
一、重整投资的趋势
首先,我们来谈谈重整投资已经展现出的四个变化趋势。
第一个趋势,是从被动投资到主动投资。
什么是被动投资?以往一些破产项目中的重整投资人,往往本身就是破产企业的债权人,他们随着陷入危机的破产企业一起被困在了“水中”,不得不通过参与重整投资寻求最后的“上岸”机会,比较典型的就是一些作为困境企业债权人的AMC公司。
什么是主动投资?这几年里,逐渐有一些“岸上的人”也瞄准了重整投资领域。“岸上的人”,是与困境企业没有关系的外部投资人,他们没有受到困境企业的牵连,而是将重整投资视作一个宝贵的商业机会,主动参与其中。这样的“岸上投资人”,既包括产业投资人,也包括财务投资人。
On 22 July 2022, the English High Court sanctioned Houst Limited’s (“Houst” or the “Company”) restructuring plan (the “Restructuring Plan”), which significantly, is the first time a Restructuring Plan has been used to cram down HM Revenue & Customs (“HMRC”) as preferential creditor.1
Background
The High Court of Australia’s decision in Wells Fargo Trust Company, National Association (as Owner Trustee) & Anor v VB Leaseco Pty Ltd (Administrators Appointed) & Ors (the “Willis” case).
On Wednesday, 16 March 2022, the High Court of Australia handed down its decision in the Willis case.
On 12 January 2022, the English High Court granted Smile Telecoms Holdings Limited’s (“Smile” or the “Company”) application to convene a single meeting of plan creditors (the super senior creditors) to vote on the Company’s proposed restructuring plan (the “Restructuring Plan”). It is the first plan to use section 901C(4) of the Companies Act 2006 (“CA 2006”) to exclude other classes of creditors and shareholders from voting on the Restructuring Plan on the basis that they have no genuine economic interest in the Company.
Background
On the 19th of August 2021, the English High Court sanctioned a Part 26A restructuring plan proposed by the administrators of Amicus Finance plc (in administration) (“Amicus”) for the company’s solvent exit from administration, enabling the company to be rescued as a going concern (the “Restructuring Plan”).
On 29 September 2021, the English High Court rejected a challenge in respect of Caff Nero's company voluntary arrangement ("CVA"), brought by a landlord on the grounds of material irregularity and unfair prejudice. The single disgruntled landlord, with the backing of the EG Group ("EG") (who were interested in acquiring Caff Nero), argued that the directors of the company and the CVA nominees breached their respective duties in refusing to adjourn or postpone the electronic voting process to vote on the CVA, after EG had submitted an eleventh-hour offer for Caff Nero.
On the 2 August 2021 Treasury released a consultation paper titled ‘Helping Companies Restructure by Improving Schemes of Arrangement. The consultation is aimed at reforming Australia’s scheme of arrangement procedure.