What you need to know in light of Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq)

The NSW Supreme Court recently handed down its decision in the matter of Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412, in which K&L Gates represented Seymour Whyte. The decision sheds light on numerous issues, including:

On 9 March 2018, in what was a highly anticipated judgment for many liquidators, the Queensland Court of Appeal reversed the controversial first instance Supreme Court decision in the matter of Linc Energy Pty Ltd (In Liquidation)1.

Background

Shortly prior to the appointment of liquidators to Linc Energy Limited (in Liquidation) (Linc) in May 2016, the Department of Environment & Heritage Protection (Department) issued an environmental protection order (EPO) to Linc in relation to its coal seam gas project at Chinchilla in Queensland.

FASHION LAW “Style is something each of us already has, all we need to do is find it.” – Diane von Furstenberg MARCH 2018 2 | K&L Gates: Fashion Law November 2017 Welcome to another packed edition of Fashion Law! Time has flown by and as we march through 2018, we are proud to continue our long standing sponsorship of the Virgin Australia Melbourne Fashion Festival (VAMFF). The Festival is a celebration of Australian designers and our rich fashion heritage, showcasing Australian talent on an international stage.

Date

6/22/2017

Action

Testimony of Keith Noreika, Acting Comptroller of the Currency, before the Senate Committee on Banking, Housing, and Urban Affairs.

Key Provisions

The Comptroller made a series of recommendations for regulatory reforms directed at promoting economic growth and reducing regulatory burden. He stated that the OCC’s recommendations are consistent with the Treasury Report.

Key recommendations include:

Last year the government introduced the most significant reforms to Australia's insolvency regime for over three decades. Among other changes, reforms that will come into effect on 1 July this year (or earlier by proclamation) will have a significant impact on the ability for counterparties to exercise certain rights under contractual provisions known as ipso facto clauses.

The Bankruptcy Code allows trustees, as well as debtors-in-possession and in some circumstances creditors’ committees, to set aside and recover certain transfers for the benefit of the bankruptcy estate. The purpose of the avoidance powers is to maximize funds available for creditors and to ensure equality of distribution among creditors’ claims. The avoidance powers are not without bounds, however, as the Code sets forth a number of exceptions — most notably, the so-called “securities contract safe harbor” under Section 546(e) of the Bankruptcy Code.

On February 27, 2018, the Supreme Court issued a significant decision that will increase the exposure of debt and equity investors that receive payments from all kinds of highly leveraged transactions, including leveraged buy-outs and dividend recapitalizations. The unanimous opinion in Merit Management Group, LP v.

This article was first published in the Australian Financial Review on Thursday, 22 February.

In the five years to November 2017, AUD1.8 billion of GST revenue was written-off due to phoenixing – where companies are stripped of assets and liquidated, then restarted under a different name leaving creditors out of pocket.

The Ninth Circuit recently limited the availability of diversity jurisdiction for certain cases with claims involving mortgage loan modifications. Specifically, in Corral v. Select Portfolio Servicing, Inc., the Ninth Circuit held that, where the plaintiff-borrower “seeks only a temporary stay of foreclosure pending review of a loan modification application … the value of the property or amount of indebtedness are not the amounts in controversy.” — F.3d —-, 2017 WL 6601872, at *1 (9th Cir. Dec. 27, 2017).

The Delaware Bankruptcy Court recently dismissed a Chapter 11 bankruptcy case pending before it and recognized, under Chapter 15 of the Bankruptcy Code, the debtor’s bankruptcy proceeding in Belgium. Exelco NV (“Exelco”), a Belgian diamond distributor, owed KBC Bank NV (“KBC”) approximately US$14 million. KBC’s debt was secured by a pledge on essentially all of Exelco’s assets. Exelco’s debt was also guaranteed by an affiliated company and certain individuals. When Exelco defaulted on its debt obligations, KBC commenced a sort of involuntary insolvency proceeding in Belgium.