Key Points:

In some circumstances a plaintiff/claimant can bypass a defendant (even an insolvent one) and seek a declaration against the defendant's insurer.

The High Court has confirmed that, if a defendant is insolvent, the plaintiff may seek a declaration that the defendant's insurer is liable to indemnify the defendant, at least when:

Key Points:

A Senate Economics References Committee has recommended that the Commonwealth enact uniform national security of payment legislation, albeit with a target of around 2018 for implementation.

Security of payment (SOP) reform discussion papers were released by the Queensland and New South Wales Governments in the run up to Christmas. That timing happened to coincide with the publication by the Senate Economics References Committee of its report "'I just want to be paid': Insolvency in the Australian Construction Industry".

Director of Corporate Enforcement -v- Walsh & ors [2016] IECA 2 concerned an appeal by the Director of Corporate Enforcement (the Director) against a decision of Barrett J declining to make a disqualification or restriction order against three directors.

In Cahill -v- O'Brien & anor [2015] IEHC 817, the Court considered an application for the restriction of two directors pursuant to Section 150 of the Companies Act, 1990 together with an application extending the time for the making of the application.

Facts

Key Points:

Complex cross-border issues can be dealt with relatively easily under the Cross-Border Insolvency Act as long as flexibility is built into the relevant orders.

Key Points:

You can lead a director to the safe harbour, but you can't make him drink.

The Government's new approach to insolvency is long on rhetoric about risk taking and the need to remove the stigma of business failure.

However, it is short on detailed consideration of exactly why we have legal rules for corporate and personal insolvency.

Those rules aim to balance the interests of creditors against the need to encourage business start-ups.

The Australian Government has accepted certain recommendations of the Productivity Commission's long-awaited Report on Business Set-up, Transfer and Closure, in an attempt to change the focus of Australia's insolvency laws from "penalising and stigmatising business failure”, according to the Minister for Small Business and Assistant Treasurer, the Hon Kelly O'Dwyer MP.

It has expressed a willingness to legislate to introduce at least two main changes:

In its recent decision in the case of Perfect Pies Limited (in receivership) and Pearse Farrell v Chupn Limited [2015] 11 JIC 0607, the Commercial Court has considered the difficult question of the unreasonable withholding of consent to the assignment of a commercial lease. This case involved interesting issues, in particular around a landlord potentially seeking to use the opportunity of an application for consent to assignment to pursue "ulterior motives" – in this case, to obtain possession of the premises.

Background 

Key Points:

It's unclear that safe harbours by themselves will provide genuine opportunities for restructuring distressed businesses.

The Productivity Commission's upcoming report on corporate insolvency will address two burning issues: ipso facto clauses and how to encourage directors to save financially-stressed companies.

In this unusual case the High Court considered the enforceability of a contract for the sale of land to a construction company now in receivership, with much of the argument surrounding whether there was in fact a sufficient note or memorandum in writing for the purposes of the Statute of Frauds (Ireland) 1695.

Facts