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    Forbearance as part of a lender's toolkit, part 1
    2014-07-24

    Key Points:

    A forbearance arrangement is a useful instrument to ensure that both the lender and the customer are aligned on the proposed turnaround or workout.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Clayton Utz
    Authors:
    Peter Bowden , Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    UK Supreme Court expands concept of submission to jurisdiction of foreign court in insolvency
    2012-12-06

    A creditor with assets in England should refrain from involvement in a foreign insolvency proceeding if it is at risk of being sued in the foreign court.

    Filed under:
    Australia, United Kingdom, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Liquidator (law), UK Supreme Court
    Authors:
    Karen O'Flynn
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz
    The ABC of a successful corporate rescue: lessons from the court receivership of ABC2 Group Pty Ltd
    2011-05-20

    In insolvency circles, the word "success" is definitely a relative term. Often it only means that a complete meltdown of the company's business has been averted, or that employees have at least received their statutory entitlements on their way out the door.

    The ABC Learning Centre story has, however, definitely been a success by any measure – including some measures which are not generally part of the metrics of insolvency.[1] In order to see why this insolvency administration deal was both unique and uniquely successful, it is necessary to understand some of the background.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Market capitalisation, Subsidy
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Third time lucky? Decision upheld to set aside disclaimer of contaminated property where liquidators hold indemnity
    2021-11-11

    Victoria's Court of Appeal has reaffirmed the risk that a disclaimer of property may be set aside where the liquidators are indemnified, and the need for liquidators to be mindful where the company holds contaminated property.

    Filed under:
    Australia, Victoria, Environment & Climate Change, Insolvency & Restructuring, Litigation, Clayton Utz, Environmental protection
    Location:
    Australia
    Firm:
    Clayton Utz
    COVID-19 temporary relief: less creative destruction, more restructuring?
    2020-08-31

    Australia has now entered its first recession in 29 years, and the Australian Government has implemented a number of legislative reforms and other initiatives to support and provide temporary relief to businesses, including stimulus payments, enhanced asset write-off and flexibility in the application of the Corporations Act 2001 (Cth).

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Clayton Utz, Private equity, Coronavirus, Corporations Act 2001 (Australia), Australian Securities Exchange
    Location:
    Australia
    Firm:
    Clayton Utz
    Important commercial purpose of D&O liability insurance upheld in "insolvency exclusion" case
    2019-02-07

    The Kaboko judgment brings comfort to directors who hold D&O insurance policies, or those seeking to bring proceedings against directors of an insolvent company, provided the claim is not based in whole or in part on the company's insolvency.

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Insurance, Litigation, Clayton Utz, Liability insurance, Corporations Act 2001 (Australia)
    Authors:
    Nick Cooper
    Location:
    Australia
    Firm:
    Clayton Utz
    Payments for insolvent claimants - approach to Security of Payment rejected as "plainly wrong" by NSW Supreme Court
    2018-04-26

    A recent NSW Supreme Court decision has decided that an insolvent contractor can claim under Security of Payment legislation, rejecting Victorian Court of Appeal precedent as "plainly wrong". It might have significant ramifications for participants in the building and construction industry across Australia.

    In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2018] NSWSC 412, the NSW Supreme Court considered the extent to which Security of Payment (SOP) legislation can be relied upon by an insolvent contractor.

    Filed under:
    Australia, Construction, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Jonathan McTigue
    Location:
    Australia
    Firm:
    Clayton Utz
    First judicial guidance about "perfection by possession" under the PPSA
    2017-08-31

    To perfect a security interest by possession, a secured party must have actual or apparent possession of the property. A contractual right to possess is not enough.

    We now have the first judicial guidance in Australia on the concept of "perfection by possession" under the Personal Property Securities Act 2009 (PPSA) (Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866).

    What is "perfection by possession"?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Bankruptcy, Corporations Act 2001 (Australia)
    Authors:
    Greta Burkett , Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    24 December 2015 Cross-border insolvency provisions at work
    2015-12-24

    Key Points:

    Complex cross-border issues can be dealt with relatively easily under the Cross-Border Insolvency Act as long as flexibility is built into the relevant orders.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Chapter 11 again mooted as an option for Australia's insolvency regime
    2014-07-10

    Key Points:

    A Senate Committee has said amendments to Australia's corporate insolvency laws should be considered to encourage and facilitate corporate turnarounds.

    The Senate Economics References Committee called for a review of Australia's corporate insolvency laws to ensure they facilitate corporate turnarounds. One suggestion was for the implementation of certain features of the US' Chapter 11 regime into Australia's insolvency laws.

    The arguments for changing the insolvency regime

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz

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