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    The Courts flip-flopping (again) on the validity of “flip clauses”
    2016-09-01

    Judge Chapman’s judgment is obviously a welcome development for participants in the structured capital markets, particularly those who transact regularly with US counterparties.

    Filed under:
    Australia, United Kingdom, USA, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Clayton Utz, Collateralized debt obligation
    Authors:
    Karen O'Flynn , Flora Innes
    Location:
    Australia, United Kingdom, USA
    Firm:
    Clayton Utz
    When is a judgment debt not a judgment debt?
    2016-09-02

    This week’s TGIF considers the case of Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, where the Court exercised its power to “go behind” a judgment upon which a petitioning creditor relied as proof of a debt that was owed.

    WHAT HAPPENED?

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Bankruptcy, Debtor, Debt, Federal Court of Australia
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Destitution and restitution: $6m in company assets transferred without authority clawed back by liquidators
    2016-09-06

    The bar for recovering assets that have been dubiously transferred out of an insolvent company may not be as high as one might think.

    Background

    On 14 June 2016, in its judgment delivered in Great Investments Ltd v Warner [2016] FCAFC 85, the Full Court of the Federal Court of Australia confirmed that a benefit transferred from a company without authority can only be retained by the recipient in very limited circumstances.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, McCabe Curwood
    Authors:
    Andrew Lacey , Nathan Jones , Dylan Heffernan
    Location:
    Australia
    Firm:
    McCabe Curwood
    Shipping collapses on the rise - Hanjin the latest to sink
    2016-09-08

    Shipping companies world-wide are suffering from depressed freight rates caused by years of weakening demand—particularly from China—as global trade has slowed. The latest casualty is one of the largest to date, South Korea’s Hanjin Shipping (Hanjin), the country's largest shipping firm and the world's seventh-biggest container carrier, which was placed into receivership by a South Korean court on Wednesday after its financiers ended financial support.

    Filed under:
    Australia, South Korea, Insolvency & Restructuring, Shipping & Transport, McCullough Robertson
    Authors:
    John Kettle
    Location:
    Australia, South Korea
    Firm:
    McCullough Robertson
    Supreme Court of Victoria dismissed application to set aside statutory demand on basis of spurious and hypothetical dispute
    2016-07-22

    This week’s TGIF considers the case of Brandon Industries (Vic) Pty Ltd v Locker Pty Ltd [2016] VSC 373 where the Court dismissed an application to set aside a statutory demand due to the applicant’s failure to establish a genuine dispute or offsetting claim pursuant to section 459H of the Corporations Act 2001 (Cth).

    BACKGROUND

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Debtor, Debt, Legal burden of proof, Good faith, Corporations Act 2001 (Australia), Victoria Supreme Court
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Australian insolvency law reforms aim to increase business restructuring opportunities
    2016-07-22

    The Australian government is working to significantly reform Australia’s current insolvency laws by mid-2017.

    The reforms are intended to achieve greater likelihood of business preservation by introducing the flexibility to achieve real turnaround of businesses in crisis.

    The proposed changes include:

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, DLA Piper, Bankruptcy, Breach of contract, Start-up companies, Board of directors, Entrepreneurship, Liquidation, Distressed securities, The Australian
    Authors:
    Amelia Kelly
    Location:
    Australia
    Firm:
    DLA Piper
    Short cuts make for even longer delays
    2016-08-04

    Any legislation or action which seeks to alter the pari passu distribution of an insolvent company's property amongst its creditors needs to be very carefully and comprehensively considered, and have regard to accrued rights and interests.

    Filed under:
    Australia, Western Australia, Insolvency & Restructuring, Litigation, Tax, Clayton Utz, Income tax, Liquidation, Liquidator (law), Pro rata, Corporations Act 2001 (Australia), High Court of Justice (England & Wales), High Court of Australia, Singapore High Court
    Authors:
    Svetlana Zarucki
    Location:
    Australia
    Firm:
    Clayton Utz
    Setting aside DOCAs and exercising the casting vote
    2016-08-05

    This week’s TGIF considers Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848 which considers setting aside a DOCA and the administrator’s casting vote.

    FACTS OF THIS CASE

    After complex litigation with Britax, Infa Products lost the case and as a direct consequence, appointed administrators.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Breach of contract, Board of directors, Deed, Liquidation, Voting, Liquidator (law), Prejudice, Corporations Act 2001 (Australia)
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    E-Alert No. 3 of 2016: Building, Engineering, Construction and Infrastructure
    2016-08-09

    What’s insolvency got to do with it….

    Times are tough in the Queensland construction industry.

    In recent times we have seen the demise of names such as Glezeil, Carmichael Builders, SX Projects, TRAC Construction, Gary Deane Constructions and JM Kelly (Project Builders) Pty Ltd.

    Insolvency affects all industries, but, given the hierarchical nature of construction contracts, when a construction company is unable to pay its bills, it can cause devastating results both up and down the contractual line:

    Filed under:
    Australia, Queensland, Construction, Insolvency & Restructuring, Broadley Rees Hogan
    Authors:
    Brent Turnbull
    Location:
    Australia
    Firm:
    Broadley Rees Hogan
    Can a foreign company be wound up in Australia?
    2016-08-10

    In Cato Brand Partners Pty Ltd v Air India Ltd the Supreme Court was required to consider whether or not a foreign company had grounds to challenge an application for a winding up order in circumstances where it had not sought to set aside a statutory demand within the required 21 day period.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Piper Alderman, Debtor, Liquidation
    Authors:
    Ian Nathaniel
    Location:
    Australia
    Firm:
    Piper Alderman

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