New Decision Affects D&O Liability
A recent federal bankruptcy court decision addresses important principles of fiduciary conduct (and the benefits of a state exculpatory statute) in the context of a financially distressed not-for-profit hospital.
The Patent Office's decision in McCann as Liquidator of ACN 137 233 919 v Molnar [2017] APO 30 explores interesting territory for liquidators and insolvency professionals – the intersection of insolvency and intellectual property.
On 2 October 2015, a company which had gone into liquidation, Sax, filed a request to amend the ownership of a patent application from itself to its sole director, Ms Molnar, pursuant to a sale agreement by which Sax had sold all of its intellectual property to Ms Molnar for $55,000. The Patent Office recorded the amendment on 16 October 2015.
Some of the most far-reaching Australian insolvency law changes are taking effect. These new laws will restrict the enforceability of a whole class of common clauses in contracts –so called 'ipso facto' clauses.
In this edition of FINSights, we explore what these changes mean for financiers, and outline key tips and issues they should consider as we move forward into the new regime.
What are ipso facto clauses?
Introduction
In late 2015, the High Court handed down its decision in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48. The High Court held (by a majority of 3:2) that, in the absence of an assessment, a liquidator is not required to retain funds from asset sale proceeds in order to meet a tax liability which could become payable as a result of a capital gain made on the sale. In doing so, the majority of the High Court affirmed the decision of the Full Federal Court and provided long awaited guidance to liquidators, receivers and administrators.
On 28 March 2017, the Australian Government announced its proposals to reform the law relating to insolvent trading, and the right to terminate contracts based on insolvency ('ipso facto clauses'). MinterEllison made a detailed submission on the proposals which can be found here.
Mission Product Holdings, Inc. v. Tempnology, LLC, Case No. 16-9016 (1st Cir., Jan. 12, 2018) (Kayatta, J) (Torruella, J, concurring in part, dissenting in part).
ISSUE 3 2017 FOCUS ON Brexit & the US Administration IN International News The Best Option for Dispute Resolution Brexit and the Free Flow of Data What to Expect from Trump’s FTC and DOJ in Terms of Merger Policy 2 International News EDITOR Andrea Hamilton Partner Brussels +32 2 282 35 15 [email protected] PUBLICATION EDITORS Aileen Devlin Kate Hinze CREATIVE SERVICES Jane Hanlon Cali Stefanos TABLE OF CONTENTS 3 Cross Border M&A: The Impact of Brexit, the Trump Ad
On 31 January 2017, the Supreme Court of New South Wales handed down judgment in In the matter of OneSteel Manufacturing Pty Limited (administrators appointed). This important decision highlights the severe consequences that may follow from seemingly innocuous mistakes made when registering security interests.
On 28 March 2017, the Australian Government announced its proposals to reform the law relating to insolvent trading, and the right to terminate contracts based on insolvency ('ipso facto clauses').