Insolvent companies often hold a large volume of personal data, such as customer lists or user data. Who is responsible for this information? Recently, the Irish High Court decided a case concerning the transfer of patient records from a private hospital in liquidation.

The insolvency of one of the principals, contractors or subcontractors can seriously impact a construction project at all levels of the supply chain. Infrastructure and Projects partner, Ted Williams look at the issue and some practical thoughts on drafting contracts to help mitigate these risks.

“How did you go bankrupt?" Two ways. Gradually, then suddenly.” ? Ernest Hemingway

The Supreme Court has held that a floating charge, crystallised by notice, prior to the commencement of a winding up, ranks ahead of preferential creditors. However, the Court expressed the view that the relevant legislation needs to be amended to reverse the “undoubtedly unsatisfactory outcome”.

Background

The High Court has confirmed that it does not have a role in examining the reasonableness of a creditor’s vote on a personal insolvency arrangement when considering if a bankruptcy petition should be adjourned.

In a number of recent cases, debtors:

On 13 May 2015, the Government announced that it intends to give the courts the power to overrule the rejection by secured creditors of arrangements under the Personal Insolvency Act 2012 (the “Act”).

There is scant detail in the announcement save that it is intended to “support mortgage holders who are in arrears” and that legislation is to be brought forward before the Summer recess. How is such legislation likely to work and what potential frailties could it have?

The Issue

It is a well understood legal requirement that any time security is granted, it needs to be registered. Failure to register collateral granted as security according to the requirements of the Personal Property Securities Act 2009 (Cth) can result in the property vesting in the company in administration or liquidation. However in certain circumstances the court may make an order extending the time for registration, even after an insolvency event in respect of the grantor.

In Van Wijk (Trustee), in the matter of Power Infrastructure Services Pty Ltd v Power Infrastructure Services Pty Ltd [2014] FCA 1430, the Federal Court considered whether it was appropriate to appoint provisional liquidators to a company on the just and equitable ground in circumstances where a winding up application is on foot. Senior Associate, Sarah Drinkwater and Associate, Tim Logan, discuss the case and its implications.

The application

The Court of Appeal commenced its operations on 5 November 2014.

The reason for the establishment of the Court of Appeal was the huge backlog which had built up in the Supreme Court, where it could take up to four and a half years for a case to be heard.

Mr. Justice Sean Ryan is President of the Court which is comprised of nine judges in addition to the President. Six of these nine positions were filled by previous High Court Judges such as Mr. Justice Kelly, Ms. Justice Finlay Geoghegan and Mr. Justice Peart.

In October, we issued an Insolvency Newsflash with respect to the decision in Re: Joe & Joe Developments Pty Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1444. On 1 December 2014, a further judgement was handed down by the Supreme Court of New South Wales (Re: Joe & Joe Developments Pty Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1703), which considered additional matters and included orders for costs.

The decision In the matter of CGH Engineering Pty Ltd [2014] NSWSC 1132 handed down by Justice Brereton early in 2014 required the Court to answer an interesting and novel question - is the statutory derivative action available during a voluntary administration?

The statutory derivative action