Pooling Orders: Use of Property in a Joint Business

Morgan v McMillan Investment Holdings Pty Ltd [2024] HCA 33("McMillan")

"Where two or more related companies have engaged in a common business enterprise and are being wound up in insolvency, it may be appropriate in certain circumstances for the separate entities of the companies to be disregarded so that they are wound up together as if they were the one company." Harmer Report [854]

Our latest briefing compares recent developments in the APAC restructuring market with those in the UK. Despite APAC's and the UK's divergent monetary policy and growth forecasts, we find that restructuring markets in both regions are seeing very similar themes:

Introducción

Dentro de las resoluciones concursales publicadas este verano vuelven a cobrar especial protagonismo las relativas a los planes de restructuración. La ley 16/2022, de 5 de septiembre, que introdujo los planes en nuestro ordenamiento cumple ahora dos años de vigencia y poco a poco se va formando un nutrido cuerpo de doctrina jurisprudencial.

Dicha doctrina comienza a perfilar límites en la flexibilidad total que se predica de los planes. En concreto en esta edición de las píldoras concursales reseñamos dos nuevas resoluciones clave, que son:

What you need to know

On June 27, the U.S. Supreme Court announced a 5-4 decision rejecting the nonconsensual releases of the Sackler family in the Purdue Pharma bankruptcy case. The split is an interesting alignment of Justices: Gorsuch writing the majority opinion, joined by Thomas, Alito, Barrett and Jackson; Kavanaugh for the dissent, joined by Roberts, Sotomayor and Kagan.

Chapter 11 bankruptcy has long been thought of as anathema to commercial real estate (CRE) lenders. This is due to the debtor-friendly bankruptcy forum, particularly with respect to (i) the up to 18 month exclusivity period during which only the debtor could propose a plan of reorganization and (ii) threats of a "cram-down" plan used to lever concessions from lenders. These provisions can be, and often were, abused by debtors with no real rehabilitative intent using bankruptcy only as a leverage tool.

Executive Summary

In a radical departure from settled case law, the English High Court has eroded the protections of English law creditors guaranteed by the Rule in Gibbs¹ .

Executive Summary

Investors in LMA-based intercreditor agreements¹ (ICA) should be reassured by the commercial approach recently taken by the High Court in construing the "Distressed Disposal" provisions (DD Provisions).

It is now two years since the 30 April 2021 introduction of the Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 (the "Regulations") and a good time to look back at whether the Regulations have achieved their purpose, what issues remain and what the next two years might look like.

Summary

Key Points