Two NSW Court of Appeal decisions in two months have upheld orders made against directors of a corporate tenant to pay $3,537,040.50 in one case, and $602,178.35 in the other, as damages for the landlord’s loss of rent and make good expenses, as a result of failed retail tenancies.
The decisions are:
The Victorian Court of Appeal delivered judgment in Re Amerind today and held that the priority regime in the Corporations Act applies to insolvent corporate trustees.
In an important decision for insolvency practitioners, the Victorian Court of Appeal today delivered judgment in Commonwealth of Australia v Byrnes and Hewitt in their capacity as joint and several receivers and managers of Amerind Pty Ltd (Receivers and Managers Appointed) (in liq) & Ors [2018] VSCA 41.
Since the decision of the Supreme Court of New South Wales in Re Independent [2016] NSWSC 106, there has been doubt about whether receivers and liquidators should apply the statutory priorities afforded to employee entitlements in sections 433, 561 and 556 of the Corporations Act 2001 (Cth) (Act) when distributing the assets of companies who have conducted their businesses as trusts.
From 1 July 2018, new laws will commence which stay the enforcement of ipso facto clauses that are triggered by certain insolvency events.
What are ipso facto clauses?
An ipso facto clause in a contract allows one party to terminate or modify the operation of a contract upon the occurrence of a specific event. Many commercial contracts contain such clauses which operate to allow one party to terminate a contract only due to the commencement of formal insolvency proceedings.
Introduction – why does this matter?
In January 2018, the Aviation Working Group (“AWG”)1 as part of its review of closing opinion practice, released a revised Form of Cape Town Convention Closing Opinion. The aim of the review was to provide further guidance and consistency in the approach legal practitioners adopt in respect of Cape Town and the State of Registry Jurisdiction.
The AWG was founded in 1994, with stated aims of contributing to the development and acceptance of policies and laws that:
facilitate advanced international aviation financing and leasing, and
The Victorian Court of Appeal has handed down it’s decision on appeal from Re Amerind (receivers and managers apptd)(in liq) [2017] VSC 127; (2017) 320 FLR 118. The appeal judgment is now up on Austlii and can be read here: Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq) [2018] VSCA 41.
In good news for liquidators, the Federal Court’s decision in Marsden (liquidator) v CVS Lane PV Pty Limited Re: Pentridge Village (in which Dentons acted for the liquidator) confirms that time will be extended for liquidators who are unable to bring voidable transaction proceedings within the relevant timeframe due to a lack of funding.
The case also has wider implications. It could be relied upon by liquidators to justify subsequent claims which could otherwise have been brought at an earlier stage if funding had been available.
In Re Atwell & Co Pty Ltd (in liq) [2017] VSC 683, Justice Kennedy of the Supreme Court of Victoria considered the application of the ‘proportionality’ principle in determining liquidator remuneration.
This week’s TGIF considers the case of Kreab Gavin Anderson (Australia) Ltd, in the matter of Kreab Gavin Anderson (Australia) Ltd (No 3) [2017] FCA 1473 and an application for approval of remuneration for work carried out by the applicants as administrators and then liquidators of the plaintiff company, in circumstances where those appointments were subsequently found to be invalid.
WHAT HAPPENED?