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    Governance News 8 March 2023
    2023-03-08

    This week's issue has a strong ESG focus. We cover the Senate Committee's report into the government's Bill to overhaul the existing 'safeguard' mechanism, the outcomes of the ACCC's greenwashing sweep and the ACCC's enforcement priorities for 2023/24. On the financial services front we provide an update on the status of the proposed FAR (which would expand on and replace the existing BEAR). We also provide an update on the progress of measures to further 'modernise' Corporations Act requirements and more…

    Filed under:
    Australia, Capital Markets, Company & Commercial, Compliance Management, Environment & Climate Change, Insolvency & Restructuring, MinterEllison, Climate change, Gender pay gap, ESG, Anti-bribery and corruption, Australian Competition and Consumer Commission, Australian Securities and Investments Commission, Australian Senate
    Authors:
    Mark Standen , Siobhan Doherty , Kate Hilder
    Location:
    Australia
    Firm:
    MinterEllison
    Major Projects & Construction 5 Minute Fix 112: Hopelessly insolvent? There is hope
    2023-03-08

    In Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Constructing Pty Ltd v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99, the NSW Supreme Court considered whether a company on the brink of liquidation can take action to enforce a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Insolvency, New South Wales Supreme Court
    Authors:
    Graham Read , Frank Bannon , Dale Brackin , Sergio Capelli , Alison Close , Stuart Cosgriff , Lina Fischer , Andrew Fry , James Kendal , Andrew Leece , David Lester , Clive Luck , Jonathan McTigue , Margaret Michaels , Frazer Moss , Steve O'Reilly , Gavin Phillips , Joanna Pugsley , Chris Slocombe , Mark Spain , Natalie Speranza , Joanne Teagle
    Location:
    Australia
    Firm:
    Clayton Utz
    No peaks in unfair preferences -High Court affirms abolition of “peak indebtedness rule”
    2023-03-07

    Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2

    The High Court has unanimously dismissed an appeal against the Full Court decision in Badenoch Integrated Logging Pty Ltd v Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) [2021] FCAFC 64, finding that the “peak indebtedness rule” does not form part of s 588FA(3) of the Corporations Act and providing guidance as to how to approach the analysis required under that section.

    Background

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria
    Authors:
    Sophie Kearney
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    Past its peak: the High Court of Australia confirms the abolition of the peak indebtedness rule for unfair preferences
    2023-03-07

    In the much-anticipated decision of Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch (HCA)), the High Court of Australia (the HCA) has now confirmed that the peak indebtedness rule may not be used when assessing the quantum of an unfair preference claim arising from a continuing business relationship.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Trade & Customs, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
    Authors:
    Paul Apáthy , Margaret Fong
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    In case of emergency: Using emergency power provisions to appoint a voluntary administrator
    2023-03-07

    When a company becomes financially distressed, directors are often required to act quickly and decisively. However, directors may at the same time find themselves held back by the requirements of the Corporations Act 2001 (Cth) (the “Corporations Act”) or their company constitution.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Gilbert + Tobin, Corporate governance, Corporations Act 2001 (Australia)
    Authors:
    Peter Bowden , Peter Hession
    Location:
    Australia
    Firm:
    Gilbert + Tobin
    High Court holds statutory set-off is not available as a defence to an unfair preference claim
    2023-03-07

    Metal Manufactures Pty Ltd v Morton (as liquidator of MJ Woodman Electrical Contractors Pty Ltd (In Liq)) [2023] HCA 1

    TAKE AWAY POINTS

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria
    Authors:
    Leo Freckelton
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    Pooling order for the win!
    2023-03-03

    On 2 March 2023 the Supreme Court of Victoria published its reasons in the matter of Atlas Gaming Holdings Pty Ltd [2023] VSC 91 (the Atlas case) in which Gadens acted on behalf of the Liquidator of four companies seeking a pooling order pursuant to section 579E of the Corporations Act 2001 (Cth) (the Act). There have been very few judgments on section 579E which was introduced in 2007 by the Corporations Amendment (Insolvency) Act 2007 (Cth) Sch 1 items 133ff and operative from 31 December 2007.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Media & Entertainment, Gadens, Gaming, Insolvency, Corporations Act 2001 (Australia)
    Authors:
    Robert Hinton , Louise Schmid
    Location:
    Australia
    Firm:
    Gadens
    No more statutory set-off to unfair preference claims: the impact of Metal Manufactures Pty Ltd v Morton [2023] HCA 1
    2023-02-28

    The long-standing uncertainty about the availability of statutory set-off to unfair preference claims has finally been determined by the High Court.  The Court in Metal Manufactures Pty Ltd v Morton unanimously found that section 553C set-off is not available to creditors that are found to have received an unfair preference. 

    The decision provides much need certainty to liquidators and creditors alike.

    The Case

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Cowell Clarke
    Authors:
    Maddie Donovan
    Location:
    Australia
    Firm:
    Cowell Clarke
    First decision on Australia’s ipso facto stay in voluntary administration
    2023-03-01

    The Federal Court of Australia (Court) has handed down the first reported decision on the ipso facto stay provisions contained in the Corporations Act 2001 (Cth) (Act).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia)
    Authors:
    Paul Apáthy , Anika Sadler
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Australian Insolvency Regimes Rapidly Evolving
    2023-02-27

    The new year has seen a rapid pace being set in terms of anticipated and actual legislative, regulatory and common law changes across Australia’s restructuring and insolvency regimes. The federal government’s inquiry into restructuring and bankruptcy laws is ongoing against a backdrop of sustained monetary policy interventions.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Insolvency
    Authors:
    Masi Zaki , Kate Spratt
    Location:
    Australia
    Firm:
    Squire Patton Boggs

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