Introducción

En la edición de este mes de febrero destacamos dos interesantes sentencias de la Audiencia Provincial de Valencia:

Is an administrator of a company an "officer" of that company? The Supreme Court's answer in a recent employment judgment (with potentially broad application) was a resounding "no," which will undoubtedly reassure insolvency practitioners faced with potential criminal liability for carrying out duties conferred on an "officer" of the company.

Limiting Liability of Administrators for Employee Wages

Walley IMO PGP Group (Aust) Pty Ltd [2023] FCA 1554 ("PGP Group") and Crosbie IMO Godfreys Group Pty Ltd [2024] FCA 60 ("Godfreys")

Voluntary administrators have been able to seek orders releasing them from their personal liability for debts incurred by them in the course of conducting a company's business. That relief has been available where it has been necessary to support the continuing operation of that business.

Introducción

Esta edición de las píldoras concursales, como ya es tradicional, incluye sentencias hechas públicas en los meses de diciembre y enero. Preferimos no enviarlas ahora en lugar de a finales de diciembre porque creemos este es mejor momento para su lectura.

In the first Part 26A appeal decision since the inception of the restructuring plan in 2020, the Court of Appeal has set aside the restructuring plan sanction order that was granted to German real estate group, Adler.

Fiduciary Duties of Receivers

Receivers appointed to enforce a security owe their fiduciary duties to their appointor and not to the mortgagor. So, when realising the assets of the mortgagor, the receivers can focus their attention on pursuing that course of action which, as they judge it, is best calculated to optimise the position of their appointor; Salmon v Albarran [2023] NSWSC 1238 ("Salmon").

Following the Government's response to the UNCITRAL consultation (see our briefing here) - which suggests that, for a while at least, the rule in Gibbs is here to stay - we expect to see an increase in parallel proceedings being used when multijurisdictional corporate groups seek to restructure their debt.

Introducción

En las píldoras concursales de este mes destacamos:

The law of 7 August 2023 on business preservation and modernisation of bankruptcy law (the Law) will enter into force on 1 November 2023.

In addition to introducing certain amendments to the existing insolvency framework, the Law implements EU Directive 2019/1023 of the European Parliament and the Council of 20 June 2019 on preventive restructuring frameworks.

Scope

The Law applies to all types of commercial companies and traders (commerçants), including special limited partnerships.

Restructuring Corporate Groups: Transferring Employees under a Scheme

Intersnack Mid Co Pty Ltd(No. 2) [2024] NSWSC 9 ("Intersnack")

Restructuring or consolidating corporate groups may involve a new or different company in the group employing staff. In such a case an order can be made under s 413, Corporations Act ("CA") giving effect to that arrangement including where the staff are employed under an enterprise agreement.