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    Australian High Court: No Statutory Set-Off Against Unfair Preference Claims
    2023-03-15

    In Short

    The Situation: Historically, creditors pursued by liquidators under the unfair preference regime could rely on a statutory set-off as a defence to the claim, reducing or eliminating their liability to repay what would otherwise be preference payments, on the basis that the liability for the unfair preference payment formed part of a running account between the creditor and the company.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Jones Day, Corporations Act 2001 (Australia)
    Authors:
    Roger Dobson , Katie Higgins , Daniel P. Moloney , Lucas Wilk , Maria Yiasemides , Tim L'Estrange
    Location:
    Australia
    Firm:
    Jones Day
    Insolvency and restructuring newsletter - March 2023
    2023-03-16

    Our last newsletter commented on high inflation, dwindling business confidence and international supply chain issues. Those factors continue to influence the economic outlook, with some businesses unable to survive the strengthening head winds impacting the economy. The consumer price index increased 7.2 percent in the 12 months to December 2022, remaining stubbornly high despite significant movements in the official cash rate to 4.5%, up significantly from the 0.25% it was sitting at in October 2021. ANZ's economic forecast warns that a "policy induced recession is looming".

    Filed under:
    Australia, Canada, New Zealand, United Kingdom, Insolvency & Restructuring, Litigation, White Collar Crime, Buddle Findlay, Supply chain, Insolvency, Barclays, HSBC, Victoria Supreme Court, UK Supreme Court, Supreme Court of Canada
    Location:
    Australia, Canada, New Zealand, United Kingdom
    Firm:
    Buddle Findlay
    Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025
    2021-12-21

    In the case of Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025 (Anchorage v Sparkes), the Supreme Court of NSW considered the obligations of company officers to sophisticated commercial lending entities, and whether company officers could be personally liable for making misleading statements.

    Significance

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clyde & Co LLP
    Authors:
    Jacques Jacobs
    Location:
    Australia
    Firm:
    Clyde & Co LLP
    King & Wood Mallesons' submission on corporate insolvency in Australia
    2022-12-01

    Overview of this submission

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, King & Wood Mallesons, Mediation, Coronavirus, Insolvency, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    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
    Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025
    2021-12-21

    In the case of Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025 (Anchorage v Sparkes), the Supreme Court of NSW considered the obligations of company officers to sophisticated commercial lending entities, and whether company officers could be personally liable for making misleading statements.

    Significance

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clyde & Co LLP
    Authors:
    Jacques Jacobs
    Location:
    Australia
    Firm:
    Clyde & Co LLP
    King & Wood Mallesons' submission on corporate insolvency in Australia
    2022-12-01

    Overview of this submission

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, King & Wood Mallesons, Mediation, Coronavirus, Insolvency, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    King & Wood Mallesons' submission on corporate insolvency in Australia
    2022-12-01

    Overview of this submission

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, King & Wood Mallesons, Mediation, Coronavirus, Insolvency, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    Disclaiming property and contaminated land - increased risks for insolvency practitioners
    2023-03-13

    Liquidators accepting a new appointment will have to think carefully if there's a possibility of disclaiming onerous property as part of that appointment.

    Filed under:
    Australia, Victoria, Environment & Climate Change, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz, Due diligence, Insolvency, Corporations Act 2001 (Australia), Environment Protection Act 2017 (Victoria) (Australia), Australian Securities and Investments Commission, Victoria Supreme Court
    Authors:
    Nick Poole , Jonathon McRostie , Anthony Burke
    Location:
    Australia
    Firm:
    Clayton Utz
    The importance of being considerate - when should company directors consider the interests of creditors?
    2023-03-13

    An appeal “of considerable importance for company law” in the UK could affect Australian directors' duties.

    In Australia, the existence of a duty to consider the interests of creditors principally arises in the context of the fiduciary duty of directors to act in the best interests of the company. That duty finds expression in section 181(1) of the Corporations Act 2001 (Cth): a director or other officer of a corporation must exercise their powers and discharge their duties in good faith in the best interests of the corporation and for a proper purpose.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Creditors' rights, Corporations Act 2001 (Australia), UK Supreme Court
    Authors:
    Scott Sharry , Caitlin McConnel
    Location:
    Australia
    Firm:
    Clayton Utz

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