The recent case of Breyer Group plc v RBK Engineering Limited considered the use of winding up petitions in construction contracts.
An application was made by Breyer to stop RBK from continuing with a petition to wind up the company. The court decided that winding up petitions can operate as a form of commercial oppression and may not be appropriate, especially when adjudication or ordinary proceedings would be a more appropriate forum for the dispute.
The background
On 1 September 2017, Boart Longyear Limited (Boart), successfully implemented the reconstruction of its US law governed debt using Australian creditor schemes of arrangement (Schemes).
This is a landmark case that will influence Australian corporate reconstructions for years to come.
The case involved approval by the NSW Supreme Court and recognition by the US Bankrupcty Court under Chapter 15 of the US Bankruptcy Code, ensuring cross border effectiveness for the reconstruction.
Highlights
After ten years of operation the European Insolvency Regulation (Regulation (EC) No. 1346/2000) has been extensively reviewed by the European Commission, European Parliament and Council. On 20 May 2015, the European Parliament approved the result of that review: the recast Insolvency Regulation (Regulation (EU) No. 2015/848) (the “Regulation”), which applies to insolvency proceedings commencing from 26 June 2017.
External administrators of companies can now assign any right to sue that is conferred on them by the Corporations Act, for example voidable transaction claims and insolvent trading claims. Previously these were considered rights that could only be utilised by the appointed liquidator and so could not be assigned. Now they can.
When did this start?
- This has already begun. It commenced on 1 March 2017.
What legislation brought this about?
The New South Wales Court of Appeal granted leave to appeal following a finding that certain documents relating to attempts to secure litigation funding were not privileged.
Yesterday, in a unanimous 5-0 decision, the New South Wales Court of Appeal knocked out Justice Brereton’s remuneration decision in Sakr Nominees Pty Ltd [2016] NSWSC 709, the sixth in a series of controversial decisions on insolvency practitioner remuneration.
Gift vouchers are often considered an easy and convenient option when purchasing gifts for friends and family. For the relative with unusual taste, the friend who lives in another part of the UK or the husband and wife to be who already have everything, a gift voucher may appear to be the ideal gift. But what happens if, before the recipient has the opportunity to redeem the voucher, the relevant retailer becomes insolvent?
In terms of current insolvency law consumers are ordinary creditors who rank at the bottom of the statutory hierarchy of creditors.
A recent Western Australian Supreme Court case considered the insolvency of a partnership comprised of corporate members. When a partnership is formally dissolved, the partnership assets are realised by a court-appointed receiver, who will realise and distribute the assets in accordance with the relevant State partnership legislation. Senior Associate, Stefano Calabretta and Lawyer, Brendan May discussion this scenario further.
The Bankruptcy (Scotland) Act 2016 came into force yesterday, 30 November 2016, together with other consequential amendments and changes to the Court Rules which relate to bankruptcy in Scotland.
When considering whether or not to bring a legal action, it is important to establish if it is competent and commercially worthwhile to do so. The ability to bring, or continue with, legal proceedings against a company can be restricted if that company enters into a formal insolvency process. The position of creditors may be improved now that the Third Party (Rights Against Insurers) Act 2010 has at last been brought into force.