Failing to register a lessor’s security interest on the PPSR over plant and equipment at leased premises can result in the lessor’s unperfected security interest passing to the administrator of the lessee.

In the recent decision of Flown Pty Ltd v Goldrange Pty Ltd [2016] WASC 419, a lessee’s administrator successfully retained ownership of plant and equipment (which were not fixtures) in the leased premises.

Background

In the recent case of Hadley v BetHQ Pty Ltd [2016] FCA 1263, the debtor company, BetHQ, came to grief when a statutory demand was validly served at the company’s registered office in Brisbane as shown in ASIC records. The premises were a serviced office; however BetHQ had ceased operations at the serviced office and had moved its operations to Victoria.

On Dec. 7, 2016, the U.S. Supreme Court heard oral arguments in Czyzewski v. Jevic Holding Corp, No. 15-659. (S. Ct. argued Dec.

When a secured creditor appoints a receiver it is usual for them to sign an agreement setting out the terms of the receiver’s appointment, including payment of the receiver’s remuneration, costs and expenses. Appointment documents commonly contain indemnity clauses in which the secured creditor agrees to indemnify the receiver in specified circumstances.

In our previous bulletin we discussed the ‘safe harbour’ model in the Government’s suggested reforms to the current insolvency laws.

This bulletin considers another of the focus questions in the Proposal Paper: the voiding of ipso facto clauses relating to insolvency events.

Background

On 29 April 2016, the Federal Government released a Proposals Paper titled ‘Improving bankruptcy and insolvency laws’.

The Government is proposing these reforms to encourage entrepreneurship and investment. It hopes to reduce the stigma and detriment around failed business ventures, while still balancing the need to protect creditors.

The Eleventh Circuit Court of Appeals has clarified the type of injury that must be alleged by a plaintiff suing under the Fair Debt Collection Practices Act (FDCPA). This decision, in Church v. Accretive Health, Inc., is the first from the Eleventh Circuit applying the United States Supreme Court’s recent holding in Spokeo v. Robins.

Several of the Official Bankruptcy Forms will be replaced on December 1, 2015. For creditors, the most notable changes will be to two forms: the Proof of Claim form, Form 410, and the Mortgage Proof of Claim Attachment, Form 410A. These changes reflect an effort by the Bankruptcy Courts to elicit a clear and complete picture of what the debtor owes and how much must be paid to cure a pre-bankruptcy arrearage. Due to the Bankruptcy Court’s focus on clarity, creditors are well advised to closely follow the claim forms and accompanying instructions.

The Indiana Court of Appeals recently held that creditors must move for an in personam remedy in the original foreclosure judgment or forfeit their right to collect deficiency funds. In Elliott v. Dyck O’Neal, the bank foreclosed upon a borrower’s residence, and sought judgment against the borrowers for the full amount of the outstanding balance in the complaint. The motion for default judgment, and accompanying order, however, only sought an order in rem for the outstanding debt—omitting any mention of an in personam remedy.

Where a court has ordered the winding-up of a company, a shareholder may be able to have the winding up terminated under section 482 of the Corporations Act 2001.

Relevant factors

The power of the court to terminate a winding-up is discretionary. Relevant factors to be considered, which are not exhaustive, include the following: