A recent decision of the New South Wales Court of Appeal serves as a timely reminder of the costly consequences of failing to register a PPSR security interest in leased goods.
Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8
In March 2013 General Electric International Inc (GE), the appellant’s predecessor in title, agreed to lease turbines to Forge Group Power Pty Ltd (Forge Group).
In Suk v Hanjin Shipping Co Ltd [2016] FCA 1404, the Federal Court (a) provided guidance on how courts are to determine what stay arises upon recognition of foreign main proceedings under the Cross-Border Insolvency Act 2008; and (2) demonstrated that such recognition can cause maritime lien actions to be stayed.
Winding up a company when you are the trustee in bankruptcy of the sole director and shareholder can be more complicated than you think.
Introduction
Background
In the case of Horton v Henry, the Court of Appeal has recently upheld the High Court’s decision that a Trustee in Bankruptcy cannot compel a bankrupt to draw down his pension rights where the bankrupt has not elected to do so.
The facts
While not an exhaustive list, here is a reminder of some measures you might want to think about to help mitigate the effects of insolvency on construction projects. As with all these measures (and with insolvency generally) there are a number of complicated issues to be considered, so do seek advice as necessary.
Performance security
A five-member bench of the New South Wales Court of Appeal recently heard argument in an appeal from a decision by Justice Brereton dealing with a liquidator’s remuneration claim.
Re Sakr Nominees Pty Ltd, New South Wales Court of Appeal, Bathurst CJ, Beazley P, Gleeson JA, Barrett and J Beach AJJA, heard on 23 November 2016, judgment reserved.
It has been held that automatic set off under s 553C of the Corporations Act 2001 (Cth) precludes companies in liquidation from taking advantage of the summary progress payment regime under the Building and Construction Industry Security of Payment Act 2002 (Vic).
Façade Treatment Engineering Pty Ltd v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247
The facts
Through corporate acquisitions and asset transfers, BAT Industries plc (“BAT”) (a Claimant in the proceedings) became liable to contribute to the clean-up of the sediment of the Lower Fox River in Wisconsin, U.S.A. Arjo Wiggins Appleton Limited (“AWA”), a wholly owned subsidiary of Sequana SA (“Sequana”) (a Defendant in proceedings), became liable to indemnify BAT for part of any monies paid out. Provision was duly made in AWA’s accounts to reflect a best estimate of the value of such liability.