Il Decreto Legge n. 83 del 27 giugno 2015, convertito dalla Legge n. 132 del 6 agosto 2015, pubblicata in Gazzetta Ufficiale il 20 agosto 2015 (la “Legge 132”) ha introdotto una serie di misure di sostegno per la crescita economica relative alle procedure pre-fallimentari, a quelle esecutive e a specifici benefici fiscali.

1. MODIFICHE ALLE PROCEDURE PRE-FALLIMENTARI

• Previsioni generali relative alla procedura di concordato preventivo

Law Decree no. 83 of 27 June 2015, recently converted into Law 132/2015, which was approved on 6 August 2015 and published on the Official Gazette on 20 August 2015 (the “Law 132”) introduced a number of measures aimed at enhancing the economic growth mainly related to pre-insolvency procedures, enforcement procedures and fiscal benefits.

General introduction to trust margin trading

On 31 March, 2015, the Supreme People’s Court issued four model cases, including Shagang LLC. (Shagang) v. Kaitian LLC.(Kaitian), a case in relation to an objection to enforcement of a distribution plan. In the case, the Court has referred to the Deep Rock Doctrine originated from the United States, states for the first time that shareholders whose capital contribution is insufficient shall be subordinated to external creditors of the company with respect to their payable debts.

The High Court today granted special leave to the Commissioner of Taxation (Commissioner) to appeal against the decision of the Full Court of the Federal Court in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133. The appeal is likely to be heard later this year.

Significance

On 16 January 2015, Justice Beech, of the Supreme Court of Western Australia, handed down his decision in the matters of Hamersley HMS Pty Ltd v Davis [2015] WASC 14 and Hamersley Iron Pty Ltd v James [2015] WASC 10 (the Hamersley Decisions). In both matters, Hamersley sought to set aside determinations made by an adjudicator pursuant to the Construction Contracts Act 2004 (WA) (CCA) and Forge Group Construction Pty Ltd (In Liq) (Receivers and Managers Appointed) (Forge) sought leave to enforce the determinations.

On 11 December 2014, Justice Croft of the Victorian Supreme Court delivered judgment approving the settlement of multiple class actions brought by investors in managed investment schemes operated by an entity of the agribusiness Great Southern Group in 2005 and 2006.

The decision of the Full Court of the Federal Court handed down this week in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2014] FCAFC 133 offers welcome certainty to administrators, receivers and liquidators in relation to their obligations with respect to post-appointment tax liabilities.

Significance

In the decision of Re Arcabi Pty Ltd (Receivers & Managers Appointed) (in liq) [2014] WASC 310 the court considered:

• the application of the Personal Property Securities Act 2009 (Cth) (PPSA) to goods being held on a bailment or consignment basis by a company in receivership and liquidation; and
• the receivers’ rights to be indemnified for costs and expenses related to investigating and protecting the property of third parties.

What is the significance?

When the employer underwent a restructure, the employee’s reporting line changed, as well as his membership of a particular leadership team. His role was not abolished. For two months after the restructure, the employee continued to work in the same role, under the same contract, until he tendered his written resignation. He subsequently filed a dispute under the terms of the applicable Enterprise Agreement, seeking orders that he should have been retrenched by the employer.