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    Amendments to the Corporations Act
    2018-06-28

    "Ipso facto" amendments to the Corporations Act - what does this mean and what impact does it have on your contracts from 1 July 2018?

    Overview

    Commercial contracts commonly include a term which permits one party to exercise certain contractual rights (including the right to terminate) if the other party is either insolvent or at the risk of becoming insolvent. Such clauses are commonly called “ipso facto” clauses.

    Filed under:
    Australia, Insolvency & Restructuring, Addisons, Due diligence, Corporations Act 2001 (Australia)
    Authors:
    Daniel Goldberg , Nicole Tyson , Chuanchan Ma
    Location:
    Australia
    Firm:
    Addisons
    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
    Liquidators recover unfair preference payments from retention of title ‘secured creditor’
    2018-06-19

    In the recent court decision of Trenfield v HAG Import Corporation (Australia) Pty Ltd [2018] QDC 107, the liquidators recovered unfair preferences from a retention of title creditor who argued it was a secured creditor.

    The issues

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Cooper Grace Ward
    Authors:
    Rocco Russo , Miranda Klibbe , Graham Roberts
    Location:
    Australia
    Firm:
    Cooper Grace Ward
    Liquidation - is it really the end for a company?
    2018-06-20

    Ordinarily, a company entering liquidation is considered the commercial equivalent of “game over”, “checkmate”, “the end”, “K.O” or whatever other synonyms creditors can conjure up. This would be true for the most part because, at the end of the liquidation process, the company is usually deregistered and ceases to exist.

    However, in some cases it is possible for the liquidator, a creditor or a “contributory” (member) of the company to apply to the Court for an order terminating the winding up. If made, this would return control of the company to the directors.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, McCabe Curwood, Liquidation
    Authors:
    Andrew Lacey , Danyal Ibrahim
    Location:
    Australia
    Firm:
    McCabe Curwood
    Impending Changes to Contractual Termination Rights (Ipso Facto Reforms) and its Impact on Leases and Other Property Transactions
    2018-06-21

    In this newsletter, we will explore how the new impending ipso facto reforms, which come into effect on 1 July 2018, could affect landlords under commercial leases or parties under other contractual arrangements.

    What are the Ipso Facto Reforms?

    The ipso facto reforms seek to prevent certain termination and other ipso facto rights under a contract from being enforced against a counterparty:

    Filed under:
    Australia, Insolvency & Restructuring, Real Estate, K&L Gates LLP, Landlord
    Authors:
    Samuel Brown , Susan Parker , Jameson Shi
    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

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