The adviser group 2 session on Monday 23 May comprised Owen Clay, corporate lawyer for Arcadia and Traveta (Linklaters); Steve Denison, auditor of Traveta and its subsidiaries, including BHS (PwC); and Anthony Gutman, ‘informal’ adviser to the Arcadia Group (Goldman Sachs).

The questioning focused on the solvency position of BHS at the time of the acquisition, the level of due diligence undertaken on the eventual acquirer (Retail Acquisitions Ltd) and the recognition of the pensions deficit in the deal negotiation.

Monday 23 May saw the turn of the advisers. This update concentrates on what we will call “adviser group 1” comprising Emma King, the trustees pension lawyer (Eversheds); David Clarke, covenants adviser to the trustees (KPMG); Tony Clare, restructuring pensions adviser to Taveta Investments Limited, the previous owner of BHS (Deloitte); Ian Greenstreet, pension lawyer to Taveta Investments Limited (Nabarro); and Richard Cousins, the independent actuary to the Taveta group (PWC).

By its much anticipated yet hardly surprising judgment in Forge Group Power Pty Limited (in liquidation)(receivers and managers appointed) v General Electric International Inc  [2016] NSWSC 52, the Supreme Court of New South Wales has again shone a bright light on the importance of perfection of security interests under the PPSA, and the dramatic consequences that follow for failing to do so by reason of the PPSA vesting rules.  Indeed, the failure to register in this case has had multi-million dollar consequences.

The decision in Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288 reinforces the strict rule that an application to set aside a statutory demand must be filed and served within 21 days of receiving the demand.

Statutory demands are a common and useful tool for many unsecured creditors seeking payment of a debt.  Non-compliance with a statutory demand results in a presumption of insolvency and the possibility that a creditor can apply to wind up a company debtor.

The Insolvency Law Reform Bill 2015 has been introduced into Parliament as part of the Australian Government's strategy to modernise and strengthen the nation's insolvency and corporate reorganisation framework.

Help is at hand for insolvency practitioners (IPs) who need clarification on the Regulator’s views on scheme trustee appointments and statutory notices. The Pensions Regulator recently released a statement intended to assist IPs to understand these two areas which are of particular relevance to them.

TRUSTEES

The statement deals with scheme trustee appointments in four areas:

Freezing orders and the Foreign Judgments Act

Freezing orders (also known as Mareva orders or Mareva injunctions) are oft-used tools available to a plaintiff to preserve the assets of a defendant, where there is a danger of the defendant absconding or of the assets being removed from the jurisdiction or otherwise diminished. Such dangers put in peril the ability of a plaintiff to recover any favourable judgment against that defendant.

‘Visit England’ promotes tourism to England and Wales by reference to the beautiful scenery, world-class museums and abundance of culture on offer. Following the recent judgment of JSC Bank of Moscow v Kekhman & Ors [2015] EWHC 396 (Ch) (Kekhman), it should consider adding an advantageous personal insolvency regime to this list. 

Introduction

The Full Court of the Federal Court has given some important guidance on the calculation of remuneration for court appointed receivers.  In its decision in Templeton v Australian Securities and Investment Commission the Court has highlighted the importance of proportionality in determining reasonable remuneration.

General Position

Bankruptcy remains the most well-known, and perhaps most feared, of the personal insolvency processes. Since the current threshold was introduced 30 years ago, it has been used by creditors owed as little as £750 as a dire threat to extract payment from reluctant debtors. However, the Government has stepped in and is squeezing the bankruptcy process, seeking to ensure bankruptcy is reserved for the most appropriate cases and encouraging alternative regimes for the management of small debts.