The decision in Adhesive Pro Pty Ltd v Blackrock Supplies Pty Ltd [2015] ACTSC 288 reinforces the strict rule that an application to set aside a statutory demand must be filed and served within 21 days of receiving the demand.
Statutory demands are a common and useful tool for many unsecured creditors seeking payment of a debt. Non-compliance with a statutory demand results in a presumption of insolvency and the possibility that a creditor can apply to wind up a company debtor.
De wetsvoorstellen civielrechtelijk bestuursverbod en herziening strafbaarstelling faillissementsfraude behoren tot het Wetgevingsprogramma Herijking Faillissementsrecht en zijn gericht op fraudebestrijding. De verwachting was dat beide wetsvoorstellen op 1 januari 2016 in werking zouden treden, maar dit is niet gehaald.
On 2 December 2015 the draft bill on modernization of bankruptcy proceedings entered into public consultation. The bill is part of the Dutch legislative programme to improve and modernize bankruptcy law, known as Wetgevingsprogramma Herijking faillissementsrecht in the Netherlands.
The Insolvency Law Reform Bill 2015 has been introduced into Parliament as part of the Australian Government's strategy to modernise and strengthen the nation's insolvency and corporate reorganisation framework.
As of 1 January 2015 the harmonized financial institution resolution rules from the Bank Recovery and Resolution Directive will be implemented in national Dutch legislation. Among other things these rules confer upon the Dutch Central Bank the so-called "bail-in power". Pursuant to the bail-in instrument, the Dutch Central Bank will have the power to cancel and/or reduce the unsecured liabilities of a financial institution under resolution or convert such liabilities into equity.
In a ruling dated 16 October 2015, the Dutch Supreme Court has confirmed the enforceability of security surplus arrangements in the event a security provider is declared bankrupt. In addition, the Dutch Supreme Court has confirmed that, unlike statutory recourse claims (regresrechten), contractual recourse claims can be construed in such a manner that they come into existence (as conditional claims) before payment by the guarantor of the debt owed by the debtor, after which they become unconditional.
Recently, the Dutch Supreme Court has given an interesting ruling relating to the consequences of commingling (vermenging) of multiple objects for a security right created over one of those objects.
Dutch Supreme Court 14 August 2015 (ECLI:NL:HR:2015:2192)
In a judgment dated 13 October 2015 in proceedings between a bank and its client the Arnhem-Leeuwarden Court of Appeal ruled that the bank was allowed to terminate the credit agreement with the client on the grounds that the client had caused a reduction in the value of shares pledged to the bank.
Arnhem-Leeuwarden Court of Appeal 13 October 2015 (ECLI:NL:GHARL:2015:8354)
Blog on The Hague Court of Appeal, 17 February 2015, ECLI:NL:GHDHA:2015:281 (FGH Bank N.V. v. Aannemingsbedrijf Fraanje B.V.)
Freezing orders and the Foreign Judgments Act
Freezing orders (also known as Mareva orders or Mareva injunctions) are oft-used tools available to a plaintiff to preserve the assets of a defendant, where there is a danger of the defendant absconding or of the assets being removed from the jurisdiction or otherwise diminished. Such dangers put in peril the ability of a plaintiff to recover any favourable judgment against that defendant.