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    When will an informal source of funds be sufficient to prove a company’s solvency?
    2014-06-13

    In the recent decision of First Strategic Development Corporation Limited (in liq) and Anor v Chan and Ors [2014] QSC 60, the Supreme Court of Queensland considered the solvency of a company with no assets or formalised line of credit, but with a director who claimed to be willing to fund the $2.5 million that the company had committed to spending.

    FACTS

    Filed under:
    Australia, Queensland, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Board of directors, Queensland Supreme Court
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Appointment of a voluntary administrator for an improper use
    2014-06-13

    Part 5.3A of the Corporations Act (Act) provides a regime for a company that is insolvent or likely to become insolvent to maximise the chance of the company continuing to trade or a proposal which results in a better return to creditors rather than its immediate liquidation.  Part 5.3A sets out the requirements for the appointment of a voluntary administrator to the distressed company with a view to the company possibly executing a deed of company arrangement (DOCA) with its creditors.

    Filed under:
    Australia, Insolvency & Restructuring, Rockwell Olivier
    Authors:
    Mark Petrucco , Megan Scott
    Location:
    Australia
    Firm:
    Rockwell Olivier
    The role of the turnaround manager
    2014-05-29

    Key Points:

    The key to planning, devising and implementing a successful turnaround is having the right team in place to properly assess all relevant information, circumstances and risks.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Accounting, Stakeholder (corporate)
    Authors:
    Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    Experts nervous on independence and process post Billabong
    2014-05-29

    Independent experts have become increasingly nervous on independence and process points since the Australian Securities and Investments Commission (ASIC) required a replacement independent expert in Billabong, apparently based on independence concerns raised by ASIC in that case.

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Herbert Smith Freehills LLP, Shareholder
    Authors:
    Rebecca Maslen-Stannage
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Universalism or territorialism in cross border insolvency
    2014-05-30

    The decision Akers as a joint foreign representative of Saad Investments Company Limited (in Official Liquidation) v Deputy Commissioner of Taxation [2014] FCAFC 57 demonstrates that Australian Courts may be willing to depart from the philosophical basis for cross border insolvency in order to protect the interests of Australian based creditors.

    Background

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Liquidation
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Insolvency - avoiding the long reach of the unfair preference payment claim
    2014-06-02

    When the liquidator of a company comes knocking on a creditor’s door, it is to echoes of "Queue jumper!" reverberating in the background. 

    Essentially, one of a liquidator's first tasks when appointed is to identify whether any creditors have been given 'preferential  treatment' - that is, whether they have been paid some or all of their debt just prior to the company's liquidation and at the expense of other creditors.

    Filed under:
    Australia, Insolvency & Restructuring, Coleman Greig Lawyers, Legal personality, Debt, Liquidation, Liquidator (law)
    Authors:
    Rebecca Hegarty
    Location:
    Australia
    Firm:
    Coleman Greig Lawyers
    Supreme Court of NSW varies part 5.3A of the Corporations Act so as to limit the personal liability of deed administrators
    2014-06-06

    In Re John Pettit Pty Limited (Subject to a Deed of Company Arrangement) [2014] NSWSC 728, the Supreme Court of NSW considered an application by the deed administrators of John Pettit Pty Ltd (John Pettit) seeking directions to sell property potentially owned by third parties and orders which limited the Deed Administrators’ personal liability in relation to the sale.

    BACKGROUND

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Deed, Corporations Act 2001 (Australia), New South Wales Supreme Court
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Michael Kimmins
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    DOCA defeats ongoing guarantee
    2014-06-06

    The Supreme Court of Western Australia has recently held that a creditor’s claim against a guarantor was extinguished some years earlier, under the guarantor’s deed of company arrangement (DOCA).

    The reasoning behind Le Miere J’s decision in Australian Gypsum Industries Pty Ltd v Dalesun Holding Pty Ltd is that a DOCA extinguishes future liabilities arising under an agreement made prior to the execution of the DOCA. This includes those arising under pre-existing guarantees.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Jackson McDonald, Secured creditor
    Authors:
    Victoria Butler
    Location:
    Australia
    Firm:
    Jackson McDonald
    Officer pleads not guilty in the first prosecution of an officer under Work Health and Safety Laws in the Australian Capital Territory
    2014-06-11

    Introduction

    On Tuesday 10 June 2014 in the Australian Capital Territory Industrial Magistrates Court, an early mention in the Kenoss Contractors case was heard.  This case includes a prosecution of both an organisation for allegedly failing to meet the primary health and safety duty and an officer for allegedly failing to exercise due diligence under the Work Health and Safety Act 2011 (ACT) which commenced on 1 January 2012.  This case is ostensibly the first prosecution of an officer under the new harmonised WHS laws.

    Filed under:
    Australia, Australian Capital Territory, Employment & Labor, Insolvency & Restructuring, Norton Rose Fulbright, Due diligence, Corporations Act 2001 (Australia)
    Authors:
    Alena Titterton
    Location:
    Australia
    Firm:
    Norton Rose Fulbright
    Budget sets new maximum payment for redundancy pay under the Fair Entitlements Guarantee
    2014-05-14

    One of the many changes to be implemented as part of the Federal Budget delivered last night was a change to the Fair Entitlements Guarantee (FEG) (previously known as the General Employee Entitlements and Redundancy Scheme or GEERS), which  guarantees certain unpaid employee entitlements in the event of insolvency or bankruptcy of that person's employer.

    Filed under:
    Australia, Employment & Labor, Insolvency & Restructuring, Clayton Utz
    Authors:
    Jennifer Ball , Cameron Belyea , Peter Bowden , Caroline Bush , Zac Chami
    Location:
    Australia
    Firm:
    Clayton Utz

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