High Court upholds decision that separate entities of foreign states may be immune from being wound up in Australia

Key takeouts

For most businesses, a decision to undertake an organisational change can mean a reduction in operational costs, a reduction in roles, an increase in efficiencies and streamlined decision-making. However, the announcement of a restructure can often leave staff of all levels feeling tense and uncertain. Effectively navigating organisational change is not something that happens by chance, it requires a clear plan, effective communication and a recognition of risks.

This article will help employers plan for organisational change, identify risks and manage communication.

In a proceeding brought by Mr Curran, in his capacity as the trustee for June Ellen Investment Trust (Plaintiff), to wind up Fitzgerald Housing Limited (formerly known as Kay Fitzgerald Housing Charity Limited) (Defendant), the New South Wales Supreme Court considered whether it was necessary to adjourn the winding up proceeding to allow the Defendant to advance a small business restructuring process (Restructuring).

Bankruptcy litigation can stem well beyond the primary bankruptcy proceedings. Continued litigation may be born out of disputes between bankrupts, bankruptcy trustees and other interested parties in respect of methods of asset liquidation.

Two recent cases from New Zealand demonstrate how an equitable lien can arise in insolvency to elevate the interest of unsecured purchasers of goods to secured status.

Key takeouts

On 22 Sept 2023, the Australian government responded to the Whittaker Review, releasing the Personal Property Securities Amendment Bill 2023 for public consultation until 17 Nov 2023.

Overview of the Whittaker review and Government's response

This week's issue has a strong risk focus. We cover speeches from ASIC Chair Joe Longo and Minister for Home Affairs Clare O'Neil to the AFR Cyber Summit. On the financial services front, the FAR Bills received Assent and the ABA's new Banking Code is anticipated to be in place in 'early 2024' (subject to ASIC approval).

Yes is the answer! On 12 July 2023, the Parliamentary Joint Committee on Corporations and Financial Services published its report regarding corporate insolvency in Australia.

Objective of the inquiry

The committee’s inquiry assessed how effective the current corporate insolvency regime is at providing benefits to, and protecting, stakeholders as well as the Australian economy. It looked at a number of aspects including:

The Parliamentary Joint Committee on Corporations and Financial Services inquiry into corporate insolvency in Australia tabled its final report to the Australian Parliament on 12 July 2023.

Key takeouts

By an Amended Special Case, Derrington J reserved for consideration by the Full Court of the Federal Court the following question: “Is statutory set-off, under s 553C(1) of the Act, available to the [appellant] in this proceeding against the [first respondent’s] claim as liquidator for the recovery of an unfair preference under s 588FA of the Act?” By majority, the Court of Appeal (Kiefel CJ, Gordon, Edelman and Stewart JJ) held that s 553C(1) of the Act does not entitle the creditor to such a set-off.

Background