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    Insolvency shake-up to impact financiers
    2018-06-28

    Some of the most far-reaching Australian insolvency law changes are taking effect. These new laws will restrict the enforceability of a whole class of common clauses in contracts –so called 'ipso facto' clauses.

    In this edition of FINSights, we explore what these changes mean for financiers, and outline key tips and issues they should consider as we move forward into the new regime.

    What are ipso facto clauses?

    Filed under:
    Australia, Banking, Insolvency & Restructuring, MinterEllison
    Authors:
    Tony Berriman , Michael Hughes
    Location:
    Australia
    Firm:
    MinterEllison
    High Court confirms validity of Holding DOCAs
    2018-06-29

    This week’s TGIF considers the case ofMighty River International Ltd v Hughes, where the High Court upheld the validity of Holding DOCAs.

    Case history

    This case concerned the validity of a deed of company arrangement (DOCA) between Mesa Minerals Ltd (Mesa) and its creditors.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Corrs Chambers Westgarth, High Court of Justice (England & Wales), High Court of Australia
    Authors:
    Cameron Cheetham , Craig Ensor , Kirsty Sutherland , Mark Wilks , Matthew Critchley , Michael Catchpoole , Michelle Dean , Sam Delaney , Estelle Blewett , David Abernethy
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Australia’s ipso facto reforms have serious consequences for IP agreements
    2018-07-02

    The Australian Federal Government's controversial ipso facto stay regime took effect on 1 July 2018.

    The regime affects the ability of a contractual party to exercise rights, such as termination rights, that are triggered by the counterparty becoming insolvent. The ipso facto stay applies to all new contracts that are not carved out under the regime.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Projects & Procurement, Davies Collison Cave
    Authors:
    Dr Gordon Hughes AM , Lachlan Sadler
    Location:
    Australia
    Firm:
    Davies Collison Cave
    "Ipso Facto" clause reforms in formal insolvency - Final exceptions from the stay now published
    2018-07-02

    Contracts, agreements, arrangements and rights to which the stay on enforcing ipso facto clauses does not apply; final Regulations and Declaration published

    The reform and its progress

    Filed under:
    Australia, Insolvency & Restructuring, Projects & Procurement, Baker McKenzie
    Authors:
    David Walter
    Location:
    Australia
    Firm:
    Baker McKenzie
    Australia’s new ipso facto regime is now live: Are your contractual rights affected?
    2018-07-03

    Australia’s new ipso facto regime is now in effect. It stays the enforcement of contractual rights triggered upon the entry of a corporate counterparty into certain restructuring and insolvency processes. The regime will affect a broad range of contracts entered into on or after 1 July 2018; however, certain contracts and contractual rights have been excluded from the operation of the stay pursuant to statutory instruments which have just been issued.

    Filed under:
    Australia, Company & Commercial, Employee Benefits & Pensions, Insolvency & Restructuring, Projects & Procurement, Herbert Smith Freehills LLP
    Authors:
    Paul Apáthy , Patrick Lowden , Andrew Rich
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Court Places Assets in the Freezer
    2018-06-21

    The Supreme Court of Western Australia has recently made a freezing order in the matter of Trans Global Projects Pty Ltd (In Liquidation) (TGP) v Duro Felguera Australia Pty Ltd (Duro) [2018] WASC 136.

    This decision sheds light on:

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, K&L Gates LLP, Arbitration award, Asset freezing
    Authors:
    Sandra Steele , Michael O'Callaghan
    Location:
    Australia
    Firm:
    K&L Gates LLP
    The Substance and the Gist - can a director waive privilege on behalf of a company in liquidation?
    2018-06-01

    This week’s TGIF considers QBH Commercial Enterprises Pty Ltd (In liq)v Dalle Projects Pty Ltd & Ors [2018] VSC 171 in which the Court considered whether privilege can be waived by a director of a company in liquidation.

    What happened?

    QBH Commercial Enterprises (QBH) was placed into liquidation on 22 February 2018.

    Filed under:
    Australia, Insolvency & Restructuring, Corrs Chambers Westgarth
    Authors:
    Cameron Cheetham , Craig Ensor , Kirsty Sutherland , Mark Wilks , Matthew Critchley , Michael Catchpoole , Sam Delaney , Estelle Blewett , Michelle Dean , David Abernethy
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    ATO releases Decision Impact Statement for Australian Building Systems (in liq) case
    2018-06-04

    In late 2015, the High Court handed down its decision in Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48. The High Court held (by a majority of 3:2) that, in the absence of an assessment, a liquidator is not required to retain funds from asset sale proceeds in order to meet a tax liability which could become payable as a result of a capital gain made on the sale. In doing so, the majority of the High Court affirmed the decision of the Full Federal Court and provided long awaited guidance to liquidators, receivers and administrators.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Tax, MinterEllison, Income tax, Corporations Act 2001 (Australia)
    Authors:
    Craig Boyle
    Location:
    Australia
    Firm:
    MinterEllison
    Oops! Another PPSR disaster - OneSteel Manufacturing Pty Limited (administrators appointed) [2017] NSWSC 21
    2018-06-05

    Introduction

    Filed under:
    Australia, New South Wales, Banking, Insolvency & Restructuring, Litigation, MinterEllison
    Location:
    Australia
    Firm:
    MinterEllison
    The statutory demand and incorporated associations: trump card or joker?
    2018-06-05

    The statutory demand is a formidable card up a creditor’s sleeve that can result in a company being deemed to be insolvent if it does not pay the creditor’s debt within 21 days of service of the demand. Whether a statutory demand served on an incorporated body other than an Australian company will be effective largely depends on the State or Territory in which the incorporated body is based and whether it is served pursuant to the correct section of the Corporations Act 2001 (Cth) (Corporations Act).

    What is a statutory demand?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, McCabe Curwood
    Authors:
    Foez Dewan , Guy Lewis
    Location:
    Australia
    Firm:
    McCabe Curwood

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