Peter Bowden heads Gilbert + Tobin’s Restructuring + Insolvency group.

He specialises in front-end restructuring and insolvency and has significant experience advising hedge funds, banks, special situations groups, investment banks, insolvency practitioners, creditors and debtors on all elements of restructuring, insolvency, liability management, workouts, banking and distressed debt transactions in a range of industries including financial services, energy, mining, mining services, property, construction, agriculture and manufacturing.

This article analyses the decision of Ball J in Kennedy Civil Contracting Pty Ltd (Administrators Appointed) (KCC) v Richard Crookes Construction Pty Ltd (RCC); in the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99 and considers the ramifications for the scope of section 32B of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

The Bankruptcy Court for the Northern District of Illinois issued a noteworthy opinion for those whose work involves real estate mortgage conduit trusts (REMIC trusts) or utilization of the Bankruptcy Code’s “safe harbor” provisions. In In re MCK Millennium Ctr. Parking, LLC,¹ Bankruptcy Judge Jacqueline P.

Bankruptcy Judge Christopher S. Sontchi recently ruled in the Energy Future Holdings case¹ that the debtor will not be required to pay the $431 million “make whole” demanded by bondholders upon the debtor’s early payment of the bonds.²

In what may become viewed as the de facto standard for selling customer information in bankruptcies, a Delaware bankruptcy court approved, on May 20, 2015, a multi-party agreement that would substantially limit RadioShack’s ability to sell 117 million customer records.

The U.S. Supreme Court’s decision in Wellness International Network Ltd. v. Sharif confirms the long-held and common sense belief that “knowing and voluntary consent” is the key to the exercise of judicial authority by a bankruptcy court judge.1 In short, the Supreme Court held that a litigant in a bankruptcy court can consent—expressly or impliedly through waiver—to the bankruptcy court’s final adjudication of claims that the bankruptcy court otherwise lacks constitutional authority to finally decide.

On May 6, 2015, the Court of Appeals for the Ninth Circuit considered whether so-called“Deprizio waivers,”¹ where an insider guarantor waives indemnification rights against a debtor, can insulate the guarantor from preference liability arising from payments made by the obligor to the lender. The Ninth Circuit held that if such a waiver is made legitimately—not merely to avoid preference liability—then the guarantor is not a “creditor” and cannot be subject to preference liability.

In In re Filene’s Basement, LLC,¹ the United States Bankruptcy Court for the District of Delaware considered the rejection damages a landlord claimant was entitled to pursuant to Section 502(b)(6) of the Bankruptcy Code after the debtor rejected its lease as part of its reorganization plan.

Bankruptcy courts appear to be increasingly sending state law claims to the district court for final review, as illustrated by a recent decision from the bankruptcy court for the Southern District of Texas. In Gomez v. Lone Star National Bank (In re Saenz), Jose Gomez financed his acquisition of a restaurant from Humberto Saenz. When the restaurant failed, Gomez sued his lender and Saenz on various claims, but Saenz filed for bankruptcy protection. The lender then moved for summary judgment against Gomez’s claims for common-law fraud and negligence.

On March 10, 2015, the United States District Court for the Middle District of Alabama issued a memorandum decision in the case of Harrelson v. DSS, Inc. (No. 14-mc-03675), declining to withdraw the reference from the bankruptcy court and holding that the existence of an arbitration agreement and a class action waiver in that arbitration agreement did not require substantial consideration of the Federal Arbitration Act (FAA).

Facts