In its recent judgment in Re Jabiru[1], the Supreme Court of New South Wales applied principles governing the appointment of Special Purpose Liquidators (SPL) in rejecting the Plaintiffs’ application for a SPL to be appointed to pursue claims against secured lenders.

The High Court has held that disclosure of debts and undertakings given to the Circuit Court in seeking a protective certificate for a personal insolvency arrangement can be relied on in other proceedings.

Background

The McLaughlins were engaged in a long running saga of litigation with Bank of Scotland plc (“BOS”) and, after a loan sale, Ennis Property Finance Limited (“Ennis”).

In 2016 they issued High Court proceedings against Ennis and Tom Kavanagh (the “Plenary Proceedings”).

In a recent Supreme Court of Victoria decision[1] in which we acted for the successful liquidators, the Court made various orders to enable the company to complete an ultra-efficient, streamlined second voluntary administration to expedite creditor consideration of a new DOCA proposal.

Key points

The recent Federal Court decision in Diversa Pty Ltd v Taiping Trustees Limited has highlighted some important risks faced by secured parties who don’t pay attention to the details when perfecting, and maintaining perfection of, their security.

The recent Federal Court decision in Diversa Pty Ltd v Taiping Trustees Limited has highlighted some important risks faced by secured parties who don’t pay attention to the details when perfecting, and maintaining perfection of, their security. Those risks include:

Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd v Metal Manufacturers Pty Limited [2021] FCAFC 228.

In a resounding judgment delivered last week, the Full Federal Court has confirmed that a statutory set-off under section 533C is not available to a defendant in unfair preference proceedings.

Key Takeaways

The Small Company Administrative Rescue Process (SCARP) was commenced on Tuesday 7 December. Now that the process is available we set out some practical considerations for companies and creditors.

SCARP

The Australian Sawmilling Co Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294

The Victorian Court of Appeal’s decision in The Australian Sawmilling Co Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294 casts significant doubt on liquidators’ capacity to rely upon section 568 of the Corporations Act to disclaim environmental liabilities, despite the absence of any involvement of the liquidator in the creation of those liabilities.

Some of the UK Government’s COVID-19 supports for businesses came to an end, or started to taper off, on 30 September 2021. The UK Insolvency service published statistics yesterday showing that the number of corporate insolvencies has returned to pre-pandemic levels. There is no reason to believe that the Irish position will be substantially different when supports come to an end.

What happened when COVID-19 struck?

In a substantial recent decision arising from the Arrium liquidation[1], the Supreme Court of New South Wales considered the materiality of significant future liabilities in assessing the company’s solvency.

A hotly anticipated decision in the ongoing saga of the Babcock & Brown liquidation was handed down last week, resulting in another win for the liquidator (represented by Johnson Winter & Slattery) and further highlighting the challenges facing liquidators when they are thrust into a quasi-judicial function when assessing proofs of debt.