In a significant decision for the insurance industry, the Federal Court of Australia has granted leave to shareholders to bring a direct action against a company’s insurers where the (insured) company was in liquidation. This is one of the earliest cases to make use of the new Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (Third Party Claim Act), and provides some useful guidance for the industry on how this new legislation will be applied.
The decision impacts plaintiff lawyers, policyholders and insurers alike. Importantly:
Following recent media reports, with effect from Monday 15 January 2018 the Official Receiver has been appointed liquidator of a number of Carillion Group companies (Carillion Plc, Carillion Construction Limited, Carillion Services Limited, Planned Maintenance Engineering Limited, Carillion Integrated Services Limited and Carillion Services 2006 Limited). The Official Receiver will be supported by a number of Special Managers from PwC.
The High Court gives an insolvency exclusion a wide scope and declines to apply narrow interpretation rules for exclusions in insurance contracts in Crowden and another -v- QBE Insurance (Europe) Ltd [2017] EWHC 2597 (Comm).
A fundamental consideration when embarking on any litigation is whether the defendant will be able to pay. In most cases, this is really a question of whether the defendant is insured (although in some cases a defendant may be uninsured and yet still have the means to pay).
What happens if the defendant is insolvent?
On 1 October 2017, the Pre-Action Protocol for Debt Claims (Protocol) will come into force. It will apply to all debt claims where:
- the creditor is a business (including sole traders and public bodies)
- the debtor is an individual (including sole traders), and
- no other specialised Protocol applies.
Why is this new Protocol being introduced?
The express purpose of the new Protocol is to:
Breyer Group Plc v RBK Engineering Ltd
The High Court's recent judgment in Breyer Group Plc v RBK Engineering Limited [2017] EWHC 1206 provides a timely reminder for parties to construction contracts of the appropriate (and inappropriate) uses of winding-up petitions.
The case concerned a successful application made by Breyer Group PLC (Breyer) for an order preventing RBK Engineering Limited (RBK) from continuing with a petition to wind up Breyer on the basis of a disputed debt.
How did the dispute arise?
In summary:
In Randhawa and Randhawa v Turpin and Hardy [2017] the Court of Appeal considered the comparatively simple question of whether the sole director of a company with articles that required two directors for a board meeting to be quorate, could validly appoint administrators under paragraph 22(2) of Schedule B1 to the Insolvency Act 1986 (paragraph 22(2)). The complicating feature was that, whilst 75% of the shares in the company were held by the sole director, the remaining 25% were registered in the name of a long-dissolved Manx company.
Background
上一篇我们谈到诉讼主体的确定问题，本文将从担保的视角对债券持有人的权利救济予以分析。
保证人单方出具《保证函》的效力
In the event of a contractual counterparty going into liquidation, whether or not a trade counterparty may claim set-off against debts owed to the insolvent counterparty can dramatically affect the commercial position of the account debtor. This was recently highlighted in the decision of Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers appointed) [2017] WASC (2 June 2017).
What does this mean for you?
Claimant Litigant in Person recovers 150 per hour for his time
Spencer and another v Paul Jones Financial Services Ltd (unreported), 6 January 2017 (Senior Courts Costs Office)
Summary
A claimant litigant in person can recover costs at his typical hourly rate (150). Whilst the burden of proving such financial loss lies on the claimant, the burden is not impossibly high.
Facts