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    Turns on the terms - when does a creditor suffer loss because of a company’s insolvency?
    2017-09-08

    This week’s TGIF considers whether a flexible payment arrangement between a subsidiary and its holding company creditor meant the parent suffered no loss on the insolvency of the subsidiary.

    What happened?

    On 17 August 2017, the West Australian Court of Appeal published its reasons in Perrine v Carrello [2017] WASCA 151 drawing a close to the long-running dispute between the Perrines and the liquidator (Liquidator) of their failed pod-home building company (PodCo).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    Kirsty Sutherland , Mark Wilks , Matthew Critchley , Rachael King , Sam Delaney , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Quantifying Compensation for Insolvent Trading - The Latest from the WA Court of Appeal
    2017-09-11

    In a decision of importance for liquidators and litigation funders, the Western Australian Court of Appeal in Perrine v Carrello has further explained the important issue of how to determine the amount of compensation recoverable by liquidators where insolvent trading has occurred.

    Filed under:
    Australia, Western Australia, Insolvency & Restructuring, Litigation, Baker McKenzie
    Authors:
    David Walter
    Location:
    Australia
    Firm:
    Baker McKenzie
    Safe harbour and ipso facto reforms pass through the Australian Senate
    2017-09-12

    The reforms introducing a safe harbour for directors of insolvent companies and, from 1 July 2018, a limited stay on the operation of ipso facto clauses have been passed by both Houses of the Australian Parliament and will likely be enacted by month end. Late on Monday evening, after some debate, the Senate passed the reforms with only minor amendments. The Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 then returned to the House of Representatives who formally passed the amended Bill last night.

    Safe harbour

    Filed under:
    Australia, Insolvency & Restructuring, DLA Piper, Safe harbor (law), Australian Senate
    Authors:
    Amelia Kelly , Kon Tsiakis
    Location:
    Australia
    Firm:
    DLA Piper
    Insolvency insights - ‘Hotchpot’ administration of a bankrupt’s estate where there is a trust
    2017-09-12

    In the recent decision of Lane (Trustee), in the matter of Lee (Bankrupt) v Deputy Commissioner of Taxation [2017] FCA 953, Cooper Grace Ward acted for the trustee in bankruptcy, who sought directions from the Court regarding the administration of a trading trust where the bankrupt was the trustee.

    Facts

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Cooper Grace Ward
    Authors:
    Rocco Russo , Graham Roberts , Miranda Klibbe
    Location:
    Australia
    Firm:
    Cooper Grace Ward
    Safe harbour reforms passed, and anti-phoenixing reforms on the way
    2017-09-12

    In a big 24 hours for restructuring and insolvency, the safe harbour reforms were passed by the Senate late last night, and anti-phoenixing reforms were announced this morning.

    Safe harbour reforms

    The safe harbour laws will commence operation the day after the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 receives Royal Assent, with the ipso facto provisions set to commence on 1 July 2018 (or earlier by proclamation).

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    Insolvency law reform - stay on enforcement of ipso facto clauses
    2017-09-13

    On 12 September 2017, some of the most significant reforms of Australia’s corporate insolvency laws in recent years were passed by both Houses of the Australian Federal Parliament. These reforms will introduce:

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Johnson Winter Slattery, Corporations Act 2001 (Australia)
    Authors:
    Ben Renfrey , Sara Gaertner
    Location:
    Australia
    Firm:
    Johnson Winter Slattery
    Shelter from the storm is near - An update on the director safe harbour / ipso facto regime
    2017-08-23

    The Senate Economics Legislation Committee has recommended that the Treasury Laws Amendment (2017 Enterprise IncentivesNo. 2) Bill 2017 (Bill) which provides a ‘safe harbour’ defence and automatic stays on certain ipso facto clauses be passed. We expect that the Bill will be passed by Parliament this year, giving company directors more flexibility when dealing with financial distress.

    History

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Hall & Wilcox, Corporations Act 2001 (Australia)
    Authors:
    David Dickens , Shane Wallace
    Location:
    Australia
    Firm:
    Hall & Wilcox
    Shifting the onerous: onerous land disclaimed by bankruptcy trustees can also become onerous for lenders
    2017-08-24

    This update deals with “onerous property” and the issues involved when a trustee in bankruptcy disclaims onerous land, including the potential impact on lenders.

    Disclaimer of onerous land by a trustee in bankruptcy

    At any time, the trustee of a bankrupt estate may disclaim land which is burdened with onerous covenants or is unsaleable or not readily saleable (s 133 of the Bankruptcy Act 1966 (Cth)).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Dentons, Bankruptcy
    Authors:
    Michael Collins , Campbell Hudson , Hector West
    Location:
    Australia
    Firm:
    Dentons
    Creditors’ rights under a DOCA - are claims to future rents extinguished?
    2017-08-25

    The NSW Supreme Court has given a Landlord leave to commence proceedings against a company for rent and make good costs arising after the date of the DOCA.

    BACKGROUND

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Real Estate, Corrs Chambers Westgarth, Landlord, Debt, Corporations Act 2001 (Australia), New South Wales Supreme Court
    Authors:
    Kirsty Sutherland , Matthew Critchley , Sam Delaney , Mark Wilks , Michael Kimmins , Rachael King
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Boart Longyear schemes amended and approved: triumph of fairness over class?
    2017-08-30

    On 22 August 2017, the Supreme Court of New South Wales approved the Boart Longyear creditor schemes of arrangement following substantial alterations to the terms of the schemes after clear messaging from the Court that it was unlikely to approve the schemes as originally formulated, on fairness grounds. In this article, we discuss some of the implications of this important judgment, which advisers will need to take into account when devising restructuring plans involving creditors’ schemes of arrangement.

    In brief

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Unsecured creditor, Corporations Act 2001 (Australia), New South Wales Supreme Court , New South Wales Court of Appeal
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP

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