Summary
In Carey v Korda [2012] WASCA 228, the Western Australian Supreme Court of Appeal (Court) has provided a timely confirmation that legal advisers engaged by receivers to provide advice in relation to a receivership are properly viewed as advisers to the receivers as principal, and not the mortgagor company.
The decision will no doubt be welcomed by insolvency practitioners, as it confirms that the legal advice, and the right to invoke the associated privilege, belongs to the receivers, not the mortgagor company.
In brief
In brief
Courts have recently approved a number of means by which external administrators can realise value from insolvent agricultural managed investment schemes and deal with the rights of growers and sponsor creditors:
There have recently been a number of significant developments in relation to schemes of arrangement. These include:
- the Federal Court refusing to make orders convening a meeting of CSR’s shareholders to vote on a demerger proposal by way of scheme, on public policy and commercial morality grounds relating to CSR’s potential asbestos liabilities
- the Government’s corporate law advisory body recommending significant reforms to the scheme regime, and
- developments regarding ‘hostile schemes’.
Each of these developments is discussed below.
Introduction
The New South Wales Supreme Court has found a solicitor liable for facilitating unlawful ‘phoenix’ activity.1 Phoenix activity consists of transferring business assets out of an old debt-laden company (which subsequently goes into liquidation) to a new debt free company. The new company carries on the business of the old company; but the assets are put beyond the reach of the creditors of the old company.
Introduction
By unanimous decision in Bruton Holdings Pty Limited (in liquidation) v Commissioner of Taxation1, five members of the High Court have reversed a controversial decision of the Full Federal Court to confirm that the Commissioner of Taxation (Commissioner) cannot ‘leap-frog’ other creditors in a liquidation.2
On 2 August 2021, the Treasury released a consultation paper seeking feedback on changes to improve creditors’ schemes of arrangement in Australia (the Consultation Paper). The submissions process has now closed.
On 12 September 2018, the High Court of Australia (High Court) gave judgment in the case of Mighty River International Limited v Hughes (Mighty River).1 In that decision, the High Court (by a 3:2 majority) held that a “holding” deed of company arrangement (DOCA) is valid.
In brief
Welcome to the first edition of the Herbert Smith Freehills Guide to Restructuring, Turnaround and Insolvency, Asia Pacific .
Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers appointed) (In Liquidation) [2013] HCA 51
Overview
Section 568 of the Corporations Act 2001 (Cth) (Act) gives liquidators broad powers to disclaim onerous property.
Until the High Court’s decision, it was unclear whether this power entitled a liquidator of an insolvent landlord to disclaim a lease, such that the solvent tenant no longer has any proprietary interest in the land.