Key Points:

This case provides some clarification of matters relating to registration of retention of title clauses for secured creditors dealing with grantors

The registration of security interests on the Personal Property Securities Register (PPSR) is a critical, yet unresolved, issue in the context of the appointment of administrators and liquidators, and also for parties to sale transactions.

Orla McCoy explains the connections between retention of title clauses, insolvency, and the Personal Property Securities Act.

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The recent decision of Modcol Pty Ltd v National Buildplan Group Pty Ltd ^[1] addressed whether leave should be granted to a subcontractor to allow it to commence proceedings against a contractor in administration in respect of the subcontractor's rights under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act).

One could almost be forgiven for thinking that nowadays delayed second creditors' meetings are just par for the course.

Applications to extend the time for the second meeting - often for months - have become quite routine, and are rarely (if ever) refused.

Some observers might thus wonder if we are losing sight of one of the objectives of the VA procedure - that it "should be expeditious".^[1]

Where the key asset of a technology start up is a potential entitlement to an R&D tax refund, the Spitfire decision provides important clarity for financiers of such businesses, as well as for liquidators (and employees) of those businesses which fail.  

There remain a number of issues in the proposed insolvency reforms that need careful deliberation, particularly where the Regulations have yet to be released for consideration.

Directors are first and foremost responsible to the company as a whole and must exercise their powers and discharge their duties in good faith in the best interests of the company and for a proper purpose. The reference to "acting in the best interests of the company" has generally been interpreted to mean the collective financial interests of the shareholders.

Debtor in possession financing in the US has continued to rise, particularly in the context of retail insolvencies. In Australia, we have seen a number of high profile retail collapses in recent years. Can DIP financing solve the woes of struggling retailers in Australia?

The Boart Longyear decisions confirm that class constitution remains a critical issue for review when pursuing creditors' schemes of arrangement.

The New South Wales Court of Appeal has recently confirmed the circumstances in which companies seeking approval of schemes of arrangement will be required to convene separate meetings for different classes of creditors.

Class constitution: key principles

Key Points:

While shareholders may only need to establish indirect market causation, there are still significant obstacles for establishing shareholder claims.

Do plaintiffs in a shareholder class action have to show they relied upon misleading or deceptive conduct, or is it enough that the market in general relied upon them, which then affected the share price?