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    Australian restructuring gets a boost as High Court supports the holding DOCA concept
    2018-09-12

    Some 25 years after Harmer promised a faster, more efficient and commercial approach for dealing with failed and failing companies, Australia's highest court has this morning confirmed that creditors can contractually bind a company and all stakeholders to a moratorium extension via a properly formed holding DOCA (Mighty River International Limited v Hughes [2018] HCA 38; Clayton Utz acted for the successful Deed Administrators of Mesa Minerals Limited).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Cameron Belyea , Karen O'Flynn , Jennifer Ball , Zac Chami , Brett Cook , Alistair Fleming , Graeme Gurney , Paul James , Gareth Jenkins , Orla McCoy , Nick Poole , Timothy Sackar , Scott Sharry , Graeme Tucker , Sally Stitz
    Location:
    Australia
    Firm:
    Clayton Utz
    Deleveraging to control
    2017-12-15

    As deleveraging to control transactions continue to be part of the legal landscape in Australia, we anticipate seeing further examples, particularly where the distressed company is a listed entity. 

    Filed under:
    Australia, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Corporations Act 2001 (Australia), Australian Securities Exchange
    Authors:
    Timothy Sackar
    Location:
    Australia
    Firm:
    Clayton Utz
    Trust companies in liquidation - dealing with priority debts
    2016-07-12

    The decision in In the matter of Independent Contractor Services (Aust) could mean more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Costs in English law, Audit, Beneficiary, Debt, Withholding tax, Liquidation, Liquidator (law), Discretionary trust, Corporations Act 2001 (Australia), Australian Taxation Office, New South Wales Supreme Court , Trustee
    Authors:
    Mikhail Glavac , Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    The statutory demand minefield: lessons from recent set aside applications
    2015-06-25

    Key Points:

    These three cases illustrate that strict compliance with legislative requirements continues to be imperative when serving statutory demands.

    Despite what appears to be a fairly straightforward legislative regime, creditors' statutory demands appear to generate an entirely disproportionate volume of litigation in the courts. The drastic consequences of failing to comply with a creditor's statutory demand warrant very strict compliance by creditors with the technical requirements of the regime.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Debtor
    Authors:
    Svetlana Zarucki
    Location:
    Australia
    Firm:
    Clayton Utz
    Courts won't rubberstamp an administrator's application to extend the convening period
    2013-06-06

    Six month extensions to convening periods should not be seen as a fait accompli, particularly if the administrator's application is opposed.

    There is a commonly held belief that courts will readily grant an administrator's application for an extension to the convening period. This might have been true once, but it is fast turning into an urban myth, judging by two recent decisions in the Federal Court.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Peter Bowden , Nick Poole , Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    Firesales in voluntary administration
    2012-03-23

    Although the Australian voluntary administration regime served as the model for the UK administration system, one notable difference has emerged between the two systems: pre-packs.

    Pre-packs – the use of a statutory insolvency regime to implement a pre-agreed debt / corporate restructuring – have not really taken off in Australia. In the UK, of course, they form a significant proportion of all administrations.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidator (law), Corporations Act 2001 (Australia)
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Lien & mean - going toe to toe with contractual, statutory & common law liens
    2022-05-26

    Property claims, especially lien claims, are common in the current environment of supply chain disruption and delay. Most contractual, statutory and common law lien claims, including where the Personal Property Securities Act 2009 (Cth) is involved, will turn on timing, scope and quantum arguments. In this article, we outline the usual levers in a lien dispute from the debtor and creditor perspectives and make some suggestions for getting to a commercial resolution.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Supply chain, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    To vest the security interest or not to vest the security interest after a restructuring?
    2020-12-10

    Companies post-restructuring are not subject to the rules protecting creditors of insolvent companies in section 588FL of the Corporations Act 2001.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    Dual officeholders and priority creditors - Must payments always flow through liquidators' hands?
    2019-07-19

    Payment of priority creditors under section 561 of the Corporations Act 2001 (Cth) is an activity conventionally performed by liquidators, albeit the section is silent as to the holder of the relevant payment obligation. The Federal Court of Australia has recently confirmed that distributions to priority (employee) creditors are not the exclusive purview of liquidators (where receivers are appointed contemporaneously); receivers may exercise the powers contained in section 561 to distribute certain funds to such priority creditors.

    Filed under:
    Australia, Banking, Employment & Labor, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    The ipso facto stay: what is in, what is out
    2018-09-12

    While much attention earlier this year was paid to the introduction of the safe harbour for directors, the second element in Australia's major reforms to insolvency laws ‒ the moratorium on the enforcement of ipso facto clauses (including self-executing clauses) ‒ is now in effect.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz

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