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A paradigm shift is underway in Australian corporate restructuring.
Bold reforms are already in force which have changed the landscape for companies, their directors, creditors and other stakeholders.
From 1 July 2018, termination and other rights against companies in administration and other restructuring-related procedures will be unenforceable under the ipso facto reform.
Regulations are expected to have significant effect on the scope of the stay – these regulations are yet to be published.
In another decision affecting Chapter 11 cases, U.S. Bank National Association v. Village at Lakeridge, --- S. Ct. ---, 2018 WL 1143822 (2018), on March 5, 2018, the United States Supreme Court issued a unanimous decision, authored by Justice Kagan, affirming the Ninth Circuit’s decision to review the Bankruptcy Court’s determination of a mixed question of fact and law for clear error, rather than de novo.
On February 27, 2018, the Supreme Court handed down a unanimous opinion, authored by Justice Sotomayor, resolving a Circuit split over the interpretation of Section 546(e) of the Bankruptcy Code, the “safe harbor” provision that shields specified types of payments “made by or to (or for the benefit of)” a financial institution from avoidance on fraudulent transfer grounds.
Since the decision of the Supreme Court of New South Wales in Re Independent [2016] NSWSC 106, there has been doubt about whether receivers and liquidators should apply the statutory priorities afforded to employee entitlements in sections 433, 561 and 556 of the Corporations Act 2001 (Cth) (Act) when distributing the assets of companies who have conducted their businesses as trusts.
In January 2018, the Aviation Working Group (“AWG”)1 as part of its review of closing opinion practice, released a revised Form of Cape Town Convention Closing Opinion. The aim of the review was to provide further guidance and consistency in the approach legal practitioners adopt in respect of Cape Town and the State of Registry Jurisdiction.
The AWG was founded in 1994, with stated aims of contributing to the development and acceptance of policies and laws that:
facilitate advanced international aviation financing and leasing, and
In a significant decision for the insurance industry, the Federal Court of Australia has granted leave to shareholders to bring a direct action against a company’s insurers where the (insured) company was in liquidation. This is one of the earliest cases to make use of the new Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (Third Party Claim Act), and provides some useful guidance for the industry on how this new legislation will be applied.
The decision impacts plaintiff lawyers, policyholders and insurers alike. Importantly:
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