Introduction
Welcome to this issue of Herbert Smith Freehills' Australian Construction Dispute Resolution Newsletter.
This newsletter updates you on legal developments relevant to your industry by featuring Australian court decisions and legislative developments of particular interest.
In this issue, we look at:
Legend International Holdings Inc (in Liquidation) v Indian Farmers Fertiliser Cooperative Limited [2016] VSCA 151
The Australian Court of Appeal refused an appeal against a winding up order made in relation to Legend in Australia where Chapter 11 proceedings were on foot in the United States.
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FUNDING IN FOCUS CONTENT SERIES REPORT T HREE JULY 2016 2 | VANNIN CAPITAL Funding in Focus Content Series Welcome Welcome to the third edition of Funding in Focus. Since the inception of Funding in Focus, the funding market has grown and developed. This development is reflected in the number, type and complexity of the cases we are being asked to fund across the globe. We have seen an exponential rise in requests for funding in a range of sectors, including in arbitration and insolvency, and in a range of jurisdictions.
This week’s TGIF considers the decision of In the matter of THO Services Limited [2016] NSWSC 509 in which the Court exercised its general power to extend the voluntary administration moratorium period to a commercial arbitration.
BACKGROUND
A party to arbitration or court proceedings in Australia can obtain a freezing order in advance of obtaining a domestic court judgment or arbitration award, in prescribed circumstances. In PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015]1 the High Court of Australia has confirmed that Australian courts have the same power to grant freezing orders prior to a judgment or award being obtained in respect of proceedings commenced outside of Australia, provided that judgment or award would be enforceable in Australia.
Section 440D imposes a stay on “proceedings in a court” against a company whilst it is in administration under Part 5.3A of the Corporations Act. It is well established that the term “proceedings in a court” does not include an arbitration proceeding: see Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 1305 at [42] (Hammerschlag J). Notwithstanding this, can the Court use its general power to make orders under s447A to extend the reach of s440D in order to impose a stay on an arbitration against a company in administration?
The Farm Debt Mediation Act 2011 (Vic) (the Act) has been in operation for some two years and is in large part modelled on New South Wales legislation which has been operative since 1994. Since the commencement of the Act in Victoria, over 180 mediations have taken place with 95% of those mediations resulting in a settlement agreement between the parties.
The Companies Act 2006 (Strategic Report and Directors' Report) Regulations 2013 (Regulations) to amend the structure of UK annual reports have been published and laid before Parliament.
On 19 April 2013, Justice Foster of the Federal Court of Australia handed down judgment in the case of Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356. The question before his Honour was whether a foreign arbitral award made in China ought to be enforced in Australia against an Australian company in liquidation.