The English High Court decision of Hunt v Singh [2023] EWHC 1784 (Ch) has provided the most substantive authority on directors' duties to creditors since the decision of the Supreme Court in BTI 2014 LLC v Sequana SA and others [2022] UKSC 25 (“Sequana”). The case specifically considered the point at which a director’s duty to take into account the interests of creditors arises.
The festive period is a time for celebrating with loved ones, enjoying food and drink, and exchanging gifts. But it can also bring financial challenges. With rising living costs, interest rates at levels not seen for over a decade, and inflation still high, the cost of Christmas can present a further struggle, leaving many overstretched and facing unmanageable debts and insolvency come January.
2023 was a year where we saw buyers and sellers of commercial real estate assets not necessarily always aligned on pricing against a backdrop of lending headwinds. As the year drew to a close, visible signs of distress were reported to be emerging in certain corners of the real estate sector which may well bring fruitful opportunities in 2024 for property investors looking to acquire new assets via distressed or enforced sales. But what is a "distressed" property sale and what are the key considerations for buyers looking to acquire these types of assets?
Two recent cases from New Zealand demonstrate how an equitable lien can arise in insolvency to elevate the interest of unsecured purchasers of goods to secured status.
Key takeouts
The recent news on the BBC about the rise in insolvencies makes for tough reading. But those who are in business already know how difficult it is out there as they try to weather the trading conditions. Inflationary pressures are increasing the costs of providing goods and services to customers, eroding profitability.
On Wednesday, 13 September, the Economy and Fair Work Committee (the "Committee") of the Scottish Parliament heard evidence regarding the general principles of the Bankruptcy and Diligence (Scotland) Bill (the "Bill"). At this stage, the Committee is responsible for examining the Bill and making a recommendation about whether Parliament should support the main purpose of the Bill.
This series looks at the enforcement options available to creditors to recover sums due by a debtor in Scotland. In previous editions we looked at the remedies of Inhibition and Earnings Arrestment.
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
When seeking to recover arrears under a lease, it is often possible to act to recover funds without the need for a court order. If a lease has been registered for preservation and execution in the Books of Council and Session, a creditor can normally move to instruct Sheriff Officers to recover the funds. This procedure is known as summary diligence and can take several forms.
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).