On 22 Sept 2023, the Australian government responded to the Whittaker Review, releasing the Personal Property Securities Amendment Bill 2023 for public consultation until 17 Nov 2023.

Overview of the Whittaker review and Government's response

This week's issue has a strong risk focus. We cover speeches from ASIC Chair Joe Longo and Minister for Home Affairs Clare O'Neil to the AFR Cyber Summit. On the financial services front, the FAR Bills received Assent and the ABA's new Banking Code is anticipated to be in place in 'early 2024' (subject to ASIC approval).

Canadian insolvency law currently offers little protection to perishable fruits and vegetable suppliers (Produce Supplier) in the event of an insolvency or bankruptcy of a purchaser of such products.

The Parliamentary Joint Committee on Corporations and Financial Services inquiry into corporate insolvency in Australia tabled its final report to the Australian Parliament on 12 July 2023.

Key takeouts

In a recent decision in the high value bankruptcy of Pramod Mittal (Mr Mittal), the Chancery division considered the rules on service of insolvency applications. The decision underlines the importance of adhering to service rules and giving as much notice as possible of insolvency applications.

A recent decision of the NSW Supreme Court examines whether a 'hopelessly insolvent' subcontractor that executes a holding DOCA to enforce payment claims served on head contractor under the NSW security of payment legislation.

Key takeouts

This week's issue has a strong ESG focus. We cover the Senate Committee's report into the government's Bill to overhaul the existing 'safeguard' mechanism, the outcomes of the ACCC's greenwashing sweep and the ACCC's enforcement priorities for 2023/24. On the financial services front we provide an update on the status of the proposed FAR (which would expand on and replace the existing BEAR). We also provide an update on the progress of measures to further 'modernise' Corporations Act requirements and more…

Liquidators and creditors should be aware of the High Court's analysis of the limits of set-off under s 553C of the Corporations Act 2001 (Cth).

In 2015, Justice Wilson-Siegel approved a new form of vesting order, referred to as the "reverse vesting order" (or RVO) as part of the restructuring in Plasco Energy (Re). An RVO is a court order that transfers unwanted assets and liabilities out of a debtor company into a (oftentimes newly incorporated) affiliated company, referred to as "ResidualCo." The debtor company is left holding only the assets and liabilities the purchaser wants to acquire.

In a recent judgment (Durose & Ors v Tagco BV & Ors [2022] EWHC 3000 (Ch)), the Court was asked to decide whether the actions of a private equity investor demonstrated "unfair prejudice". In this insight we cover what steps companies should take in light of the Court's ruling.