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    Major decision on set-off and security interests in insolvency may lead to significant contractual change
    2017-06-07

    The limitations of set-off in a liquidation scenario and the nature and effect of a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) have been clarified, with significant ramifications for principals and financiers, who should now review their rights, following the WA Supreme Court's decision in Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] WASC 152 (Clayton Utz acted for the successful receivers).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    New dangers in safe harbour rules
    2015-12-14

    Key Points:

    You can lead a director to the safe harbour, but you can't make him drink.

    The Government's new approach to insolvency is long on rhetoric about risk taking and the need to remove the stigma of business failure.

    However, it is short on detailed consideration of exactly why we have legal rules for corporate and personal insolvency.

    Those rules aim to balance the interests of creditors against the need to encourage business start-ups.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Authors:
    Karen O'Flynn
    Location:
    Australia
    Firm:
    Clayton Utz
    When can a liquidator get his or her costs and expenses?
    2014-06-26

    Key Points:

    Provided a liquidator is acting properly in conducting proceedings or realising assets, he or she is entitled to be paid fees in priority to a secured creditor.

    The High Court has recently reaffirmed the principle that a liquidator is entitled to be paid his or her costs and expenses properly incurred in realising assets of a company in priority to a secured creditor. This is so even if the fund realised was derived from an action brought against a secured creditor (Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Secured creditor, Liquidator (law)
    Location:
    Australia
    Firm:
    Clayton Utz
    A liquidator's disclaimer of a lease extinguishes a tenant's leasehold interest
    2012-10-25

    Key Points:

    The decision will give liquidators the certainty of knowing that disclaimer of a lease means that a tenant no longer has any interest in the land.

    A recent decision of the Victorian Court of Appeal has confirmed that a liquidator of a landlord can disclaim a lease with full effect, so that the land is no longer encumbered by a tenant's interest.

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz, Leasehold estate, Interest, Liquidation, Victoria Supreme Court
    Authors:
    Scott Sharry , Laura Hawes
    Location:
    Australia
    Firm:
    Clayton Utz
    Variations to charges: High Court dismisses the appeal in Octaviar
    2011-02-02

    Key Points: The High Court held there was no variation in the terms of the Charge and therefore no registration was required.

    On 1 September 2010 the High Court handed down its much anticipated decision in the appeal from the Queensland Court of Appeal in Re Octaviar Ltd (No 7) [2009] QCA 282, unanimously dismissing the appeal in Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2010] HCA 29.

    The fixed and floating charge

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Credit (finance), Surety, Debt, Deed, Liability (financial accounting), Legal burden of proof, Capital punishment, Subsidiary, Corporations Act 2001 (Australia), Queensland Supreme Court, High Court of Australia
    Location:
    Australia
    Firm:
    Clayton Utz
    Selling Australia's second largest airline during a once in 100 year pandemic: how the Virgin sale unfolded
    2021-10-04

    The Virgin sale shows the flexibility of Australia's restructuring regime and sets a significant judicial precedent for future control transactions.

    Virgin Airlines restructured through voluntary administration

    On 20 April 2020, Virgin Australia and a number of its subsidiaries were placed into voluntary administration owing $7 billion of debt to around 12,000 creditors with partners at Deloitte Australia being appointed as joint and several voluntary administrators of Virgin. Clayton Utz was appointed to act for the Administrators.

    Filed under:
    Australia, Aviation, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus, Corporations Act 2001 (Australia)
    Authors:
    Timothy Sackar
    Location:
    Australia
    Firm:
    Clayton Utz
    As liquidators prefer it - the doctrine of peak indebtedness is here to stay
    2020-07-23

    This decision puts to rest some of the uncertainty which arose due to the NZCA's approach in Timberworld and helps to solidify liquidators' prospects of recovering maximum preferential payments. 

    Preferential payments can be an important source of funding for liquidators – and the recent decision in Bryant in the matter of Gunns Limited v Bluewood Industries Pty Ltd [2020] FCA 714 is a source of some relief for liquidators.

    Timberworld – uncertainty over the impact on Australian liquidators

    Filed under:
    Australia, New Zealand, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus, Federal Court of Australia
    Authors:
    Alistair Fleming
    Location:
    Australia, New Zealand
    Firm:
    Clayton Utz
    More streamlined process, wider pool of buyers, for administrators in restructuring following Mesa Minerals decision
    2018-12-03

    Last Thursday's decision in the WA Supreme Court to allow a sale to insiders of a company subject to a deed of company arrangement will make the restructuring process smoother for administrators, who can now negotiate with a wider pool of potential purchasers, as Chapter 2E of the Corporations Act 2001 (Cth), which deals with related party transactions, will not apply (Mighty River International v Bryan Hughes and Daniel Bredenkamp as Deed Administrators of Mesa Minerals Ltd (Subject to Deed of Company Arrangement) [No 2] [2018] WASC 368; Clayton Utz acted for the deed administrators of Mes

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Authors:
    Cameron Belyea , Karen O'Flynn , Jennifer Ball , Zac Chami , Brett Cook , Alistair Fleming , Paul James , Gareth Jenkins , Orla McCoy , Nick Poole , Timothy Sackar , Scott Sharry , Graeme Tucker , Rebecca Hanrahan
    Location:
    Australia
    Firm:
    Clayton Utz
    US District Court upholds safe harbour protection of swap agreements from ipso facto prohibitions - lessons for Australia
    2018-04-12

    In June 2016, Judge Chapman of the US Bankruptcy Court handed down a landmark decision in In re Lehman Bros. Holdings Inc., 553 B.R. 476 (Bankr S.D.N.Y.

    Filed under:
    Australia, USA, Derivatives, Insolvency & Restructuring, Litigation, Clayton Utz, Lehman Brothers, United States bankruptcy court
    Authors:
    Karen O'Flynn , Flora Innes
    Location:
    Australia, USA
    Firm:
    Clayton Utz
    Safe harbour and ipso facto insolvency reforms coming soon
    2017-05-25

    Safe harbour and ipso facto clauses reforms are closer, with the consultation on the Insolvency Laws Amendment Bill 2017 having closed last week, but further work is needed.

    The Federal Government's consultation on the safe harbour and ipso facto reforms in the draft Insolvency Laws Amendment Bill 2017 closed on 17 May 2017, so we now have a better idea of what they will look like.

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

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