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    Motive irrelevant as insurer's attempt to expand the operation of an insolvency exclusion in D&O policy fails
    2019-06-27

    A recent Full Court decision is a win for directors who hold D&O insurance policies, as well as those seeking to bring proceedings against directors of an insolvent company – probably to the dismay of insurers.

    Filed under:
    Australia, United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Clayton Utz, Financial Conduct Authority (UK)
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz
    NSW Conveyancing Act a useful tool for creditors and insolvency practitioners
    2018-08-30

    Section 37A can be used by future, contingent and prospective creditors to recover assets, meaning the transferor need not be indebted at the time of the transfer.

    Recovering assets from a debtor is usually done via the recovery provisions in the Corporations Act 2001 (Cth) or theBankruptcy Act 1966 (Cth), but there is another option, at least in New South Wales, which offers creditors, insolvency practitioners and any prejudiced parties a useful alternative. A recent case demonstrates its advantages (Lardis v Lakis [2018] NSWCA 113; Clayton Utz acted for the successful creditor).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    The timely rise of phoenix reforms
    2017-10-12

    The reforms proposed to combat illegal phoenix activity range from light-touch through to more significant changes to the Corporations Act.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz, Corporations Act 2001 (Australia), Australian Taxation Office
    Authors:
    Nick Poole , Anthony Burke
    Location:
    Australia
    Firm:
    Clayton Utz
    Don’t flip out! Government's proposals on ipso facto clauses could void securitisation flip clauses
    2016-05-06

    The Australian Government is proposing to constrain certain "ipso facto" clauses ‒ a move which could make flip clauses void. The closing date for submissions is Friday 27 May 2016.

    How would changes to ipso facto clauses affect securitisation?

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    The Nexus administration: court approval for a loan facility and limits to administrators' liability
    2014-09-18

    Key Points:

    Courts will limit an administrator's liability where proposed funding is to be used directly to advance an agenda consistent with the objects of Part 5.3A of the Corporations Act.

    A recent decision of the NSW Supreme Court highlights the flexibility of Part 5.3A of the Corporations Act and the ability of administrators to seek orders protecting their interests and facilitating restructures, and was the first stage of what promises to be a novel and challenging administration (In the matter of Nexus Energy Ltd [2014] NSWSC 1041).

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, New South Wales Supreme Court
    Authors:
    Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Secured creditors scheme to get Channel Nine deal approved
    2013-02-28

    Justice Jacobson's unwillingness to depart from the interests of the majority in relation to Nine Entertainment should give parties confidence that Schemes remain an effective way to effect debt for equity swaps or similar transactions.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Media & Entertainment, Clayton Utz, Swap (finance), Federal Court of Australia
    Authors:
    Peter Bowden , Nick Poole , Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    Ipso facto clauses and insolvency
    2012-02-02

    Australia needs to rein in ipso facto clauses in order to develop a turnaround culture for financially troubled companies.

    Within hours of Kodak's move into Chapter 11 bankruptcy, the internet was alive with bad jokes:

    "Kodak's business didn't develop the way they expected."

    "Kodak was overexposed to the GFC."

    "Kodak's Chapter 11 hearing was held in camera."

    Australian businesses and liquidators might be forgiven for thinking that the bigger joke is Australia's lack of a Chapter 11 turnaround culture.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    Virgin administrators’ approach upheld in world-first decision on key provision of international aviation convention
    2022-03-16

    The High Court today gave the first decision, globally, of a Court of ultimate appeal on the question of the construction of Article XI(2) of the Cape Town Convention's protocol on Matters Specific to Aircraft Equipment (Aircraft Protocol), which is of seminal importance for financiers and lessors of aircraft property, insolvency administrators globally.

    Filed under:
    Australia, Aviation, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Pride and prejudice (but not for creditors): Disclaimer of property set aside where liquidators hold indemnity
    2020-09-17

    Liquidators need to be mindful that a disclaimer of property may be challenged. The Supreme Court of Victoria underscored a key issue in establishing "prejudice" to creditors in a liquidation, holding that a disclaimer of property may be set aside where the liquidators are indemnified.

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Nick Poole , Anthony Burke
    Location:
    Australia
    Firm:
    Clayton Utz
    In Amerind we (mostly) trust: navigating the statutory priority regime when winding up an insolvent corporate trustee
    2019-06-27

    While the High Court has provided some clarity on the operation of the statutory priority regime, insolvency practitioners will still need to tread carefully when dealing with corporate trustees.

    For insolvency practitioners who need clarity on how receivers and/or liquidators should pay, out of trust assets, priority employee claims arising from trust liabilities, the High Court's decision in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia & Ors [2019] HCA 20 (Amerind) is a welcome result.

    Filed under:
    Australia, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Jonathon McRostie
    Location:
    Australia
    Firm:
    Clayton Utz

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