APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37997 St. James No.1 Inc. v. Ed Vanderwindt, Chief Building Official and City of Hamilton (Ont.)

Municipal law – Heritage properties – Demolition or removal of structure

36778   Ad Hoc Group of Bondholders v. Ernst & Young Inc. in its capacity as Monitor et al.

(ON)

Commercial law – Bankruptcy and insolvency – Interest

You must have been in isolation if you haven’t heard or read about the Supreme Court’s decision in Bresco v Lonsdale. It has been hailed by some as opening the floodgates to adjudications by insolvent companies. But as a series of recent judgments show, there remain a number of obstacles that will need to be overcome by insolvent entities seeking to enforce an adjudication award.

The background

Reconsidering the Lasmos approach to winding-up petitions involving arbitration clauses.

Justice Morawetz of the Ontario Superior Court (also a celebrity among lawyers for being the Morawetz in the trio of Houlden, Morawetz, & Sarra, authors of the Annotated Bankruptcy and Insolvency Act) announced last week (on 8 March) that the next step in the long-running Nortel insolvency proceedings would be a cross-border joint trial to carve up the rump of Nortel’s liquidated assets (app

A bankruptcy court properly denied a bank’s motion to compel arbitration of a debtor’s asserted violation of the court’s discharge injunction, held the U.S. Court of Appeals for the Second Circuit on March 7, 2018. In re Anderson, 2018 U.S. App. LEXIS 5703, *20 (2d Cir. March 7, 2018).

“[T]he bankruptcy court did not abuse its discretion in denying [the debtor’s former employees’] motion to compel arbitration” when the dispute turned on the relative priority of their claims, held the U.S. Court of Appeals for the Second Circuit on Oct. 6, 2016. In re Lehman Bros. Holdings Inc., 2016 WL 5853265, *2 (2d Cir. Oct. 6, 2016). The Securities Investor Protection Act (“SIPA”) trustee in the liquidation of Lehman Brothers Inc.

“[B]ad faith provides an independent basis for dismissing an involuntary [bankruptcy] petition” despite the creditors’ having met all of the “statutory requirements,” held the U.S. Court of Appeals for the Third Circuit on Oct. 16, 2015. In re Forever Green Athletic Fields, Inc., 2015 WL 6080665, at *1 (3d Cir. Oct. 16, 2015). As the court stressed in this rarely litigated type of case, even when creditors file an otherwise valid petition, “that doesn’t mean the bankruptcy court can’t dismiss the case.” Id. at *4.

Summary

The Hong Kong Court of Appeal has suggested that a previous Court decision may have overstepped the mark by suggesting that an arbitration clause in a client agreement should generally take precedence over a creditor's right to present a winding-up petition.