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FOLLOWING OUR PREVIOUS ARTICLES ON THE QUALEX-LANDMARK TOWERS INC V 12-10 CAPITAL CORP CASE BEING HEARD IN THE ALBERTA COURTS, 12-10 CAPITAL CORP HAS NOW BEEN APPEALED SUCCESSFULLY IN THE COURT OF APPEAL OF ALBERTA, WHICH RELEASED IT’S DECISION EARLIER LAST MONTH. BEALE & CO PROVIDES AN UPDATE AND FURTHER COMMENTARY ON THE LATEST DEVELOPMENT OF THIS ENVIRONMENTAL CASE.

In its recent opinion in Raymond James & Associates Inc. v. Jalbert (In re German Pellets Louisiana LLC), 23-30040, 2024 WL 339101 (5th Cir. Jan. 30, 2024), the Fifth Circuit held that a confirmed bankruptcy plan enjoined a party from asserting certain indemnification counterclaims against a plan trustee because the party did not file a proof of claim.

Background

In Bolwell & Anor v NWC Finance Pty Ltd & Ors [2024] VSC 30, the Supreme Court of Victoria clarified that a lawyer will not be a "controller" of property within the meaning of section 9 of the Corporations Act 2001 (Cth) (the Act) simply because it was retained to act for a mortgagee exercising their power of sale.

This judgment provides comfort to lawyers as it confirms that they will not assume the obligations of a "controller" under the Act solely by reason of them acting in connection with the sale of real property in an insolvency context.

Whether a solar system is a “fixture” sounds like a mundane legal issue – but it has significant implications for the residential solar industry and for the financing of residential solar systems. If a system is regarded as a “fixture” of the house to which it is attached, then the enforceability and priority of the finance company’s lien on the system will be subject to applicable real estate law.

The England and Wales Court of Appeal recently handed down its first judgment relating to a restructuring plan under Part 26A of the UK Companies Act 2006: Re AGPS Bondco Plc [2024] EWCA Civ 24. Restructuring plans were a 2020 innovation in UK insolvency law, as described in our earlier alert.

Following our previous article on the Canadian case of Qualex-Landmark Towers Inc v 12-10 Capital Corp, there has been an application to appeal to Alberta’s highest court with several intervener applications. Beale & Co provides an update and further commentary on the next chapter of this environmental case.

On 19 July 2023, the parliament of the Grand Duchy of Luxembourg (Luxembourg) passed bill no. 6539A into law (the New Insolvency Law), marking a significant milestone in the movement to modernise and enhance the competitiveness of Luxembourg’s insolvency framework. The bill has been under discussion for a number of years and aims to curtail the use of bankruptcy as an insolvency solution in favour of the preemptive preservation or reorganisation of financially distressed companies.

If your company is named in a new lawsuit or receives a EEOC charge, part of your review process should include checking to see if the filing complainant or plaintiff has a pending bankruptcy action. If so, the next step is to see if the claimant disclosed their lawsuit or administrative complaint in his or her bankruptcy petition. If not, you may have a successful estoppel argument.

After a 10-month inquiry process, on 12 July 2023 the Parliamentary Joint Committee on Corporations and Financial Services (PJC) delivered its final report on the effectiveness of Australia’s corporate insolvency laws.

In this alert, we distil some of the key findings from the almost 400-page report and consider what future law reforms might look like.

A COMPLEX AND INEFFICIENT SYSTEM

The Court of Appeal has upheld the High Court decision of Mr Justice Fancourt in Denaxe Limited v Cooper & Anor [2022] EWHC 764 (Ch) striking out a substantial damages claim brought against court appointed receivers concerning the 2019 sale of Blackpool Football Club.