The interplay between arbitration and insolvency proceedings has been a recurring theme across common law jurisdictions in recent months. It is therefore timely to consider the conflict between parties' contractual rights to arbitrate and their statutory rights to present a winding up petition and how a balance can be struck when determining which should prevail.

Introduction

The appointment of joint liquidators can be a useful tool in cross-border insolvency proceedings, particularly when assets are located in a number of jurisdictions. However, courts must ensure that a joint liquidator appointment does not lead to conflicting duties based on the respective laws in each jurisdiction. This was the main issue for consideration in West Bromwich Commercial Ltd v Hatfield Property Ltd, where Jack J was satisfied that the appointment of joint liquidators was necessary.

A recent decision of the Judicial Committee of the Privy Council reaffirms its position that only in rare cases will it be appropriate to interfere with concurrent findings of fact of two lower tribunals.¹ The Privy Council found Byers and others v Chen Ningning to be one such case on the basis that an error in findings of fact as to the Respondent’s status as a director had been made by the first instance trial judge and upheld by the Court of Appeal.

Introduction

A recent decision of the Eastern Caribbean Court of Appeal has confirmed that, whilst the courts of the British Virgin Islands (BVI) will recognise the appointment of foreign representatives (including liquidators and trustees in bankruptcy) as having status in the BVI in accordance with his or her appointment by a foreign court, they may only provide assistance to representatives from certain designated countries.

On 24 December 2020, the Federal Court of Australia published reasons for a decision in which I appeared for the liquidators of two related companies, Bestjet Travel Pty Ltd (in liq) and Wynyard Travel Pty Ltd (in liq). The decision can be accessed here.

What a creditor needs to know about liquidating GUIDE an insolvent Cayman company

Last reviewed: December 2020

Contents

Introduct ion When is a company insolvent? What is a statutory demand?

Key points

• Directors have been temporarily relieved of their duty to prevent insolvent trading during the COVID-19 pandemic.
• That relief is scheduled to expire on 31 December 2020.
• Many commentators believe that directors can only avail themselves of the temporary relief if they appoint a liquidator or administrator before the moratorium expires.
• Directors of companies at risk of insolvency should seek legal advice regarding their potential liability.

The Government’s response to the pandemic

Australia’s ageing population has driven innovation in delivering housing solutions for retirees and elderly alike. As a nation of sports fanatics who also love nature and green open spaces, it is no surprise that there has been a steadily increasing trend to co-locate retirement living with recreational facilities such as golf courses, bowls clubs and other recreational clubs.

HopgoodGanim has been fortunate enough to have acted for a number of retirement village operators (scheme operators) and clubs with respect to co-location projects in Queensland.

Corporate ventures are usually founded with the very best intentions, but as matters unfold disputes between investors are all too common.

The legal steps to resolve such disputes and assert control over a company can be complex and arduous.

However, there are good reasons for this due process, and it cannot be circumvented.

As part of its COVID-19 economic response package, the Federal Government recently introduced a temporary ‘safe harbour’ for directors from personal liability for a company’s insolvent trading, which will apply for a period of six months from 25 March 2020.