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    Safe Harbour - impact on directors' decision making
    2018-12-14

    Overview

    The perception of Australia as a relatively “risky” place to sit on a board, arises in no small part from the insolvent trading prohibition in section 588G of the Corporations Act 2001 (Cth) and how it interacts with general directors’ duties.[1]

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, King & Wood Mallesons, Corporations Act 2001 (Australia)
    Authors:
    Tim Klineberg , Paul Schroder
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    The PPS Register turns 7 - Security holders, check your registrations!
    2018-12-18

    This hot-topic comes as a timely reminder as we approach January 2019 – a milestone date for the Personal Property Securities (PPS) Act, as it has now been seven years since the PPS Register went “live”.

    Every business that made seven year registrations will now see them start to expire from 30 January 2019 onwards. Businesses that selected seven year registrations early on when the PPS Register was introduced must take note as their registrations approach expiry. There can be grave consequences for lapsed registrations.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Macpherson Kelley, Security (finance), Personal property
    Authors:
    Kelly Dickson , Chelyn Murphy
    Location:
    Australia
    Firm:
    Macpherson Kelley
    Australia: The new “Ipso Facto” prohibition in the Corporations Act applicable to corporate insolvency
    2018-11-07

    Ipso facto clauses An ipso facto clause is a contractual provision that allows one party to the contract to terminate or modify the operation of the contract upon the occurrence of a specified insolvency related event (such as the appointment of an administrator, receiver or liquidator) in respect of another party.

    Filed under:
    Australia, Insolvency & Restructuring, Baker McKenzie
    Location:
    Australia
    Firm:
    Baker McKenzie
    Major projects & construction: 5 Minute Fix 23
    2018-11-08

    Get your 5 Minute Fix of major projects and construction news. This issue: discover the latest cladding developments; resources construction work now caught by WA training levy; mind the gap: public transport at the urban fringe; avoid slip-ups in your payment schedule; and the availability of insolvency processes under the Corporations Act 2001 for recovering SOP debts.

    Cladding update ‒ NSW

    Filed under:
    Australia, Arbitration & ADR, Construction, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidated damages, Corporations Act 2001 (Australia)
    Authors:
    Sergio Capelli , Frank Bannon , Dale Brackin , Stuart Cosgriff , Philip Dawson , Lina Fischer , Andrew Fry , Naomi Kelly , Steven Klimt , David Lester , Clive Luck , Alan Maguire , Jonathan McTigue , Frazer Moss , Steven Murray , Steve O'Reilly , Joanna Pugsley , John Shirbin , Chris Slocombe
    Location:
    Australia
    Firm:
    Clayton Utz
    Is it possible to save family home from the Trustee in Bankruptcy?
    2018-11-19

    Can the Trustee in Bankruptcy claim an interest in the family home because the bankrupt is living there, even if the bankrupt is not registered on the title as an owner?

    The short answer is yes: if the Trustee can prove a common intention constructive trust.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Cordato Partners, Conveyancing, Constructive trust, Federal Court of Australia, New South Wales Court of Appeal
    Authors:
    Anthony J Cordato
    Location:
    Australia
    Firm:
    Cordato Partners
    Receiver distribution of assets permitted despite objections
    2018-11-26

    The latest decision in the external administration ofMirabela is a reminder of the utility of the section 424 directions process for receivers, and an example of the steps to be taken in the face of competing asset claims.

    The Court directed that the receivers of Mirabela were justified in distributing sale proceeds of approximately US$59.5 million in the face of a third party claim to the proceeds, provided the receivers first gave 21 days’ notice of intent to do so.

    The case is a timely reminder that:

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Johnson Winter Slattery, Corporations Act 2001 (Australia)
    Authors:
    Ben Renfrey
    Location:
    Australia
    Firm:
    Johnson Winter Slattery
    Insolvency: Year in review
    2018-11-27

    Significant insolvency legislative reforms were introduced in 2017. One year on, we assess what changes, if any, these reforms have had on the insolvency market in Australia.

    The most significant insolvency law reforms in 20 years were introduced in 2017 to improve efficiency, communication, engagement and competition in external administration processes. The reforms were implemented in two tranches pursuant to the Insolvency Law Reform Act 2016 (Cth) (ILRA).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Holding Redlich, Australian Securities and Investments Commission, Corporations Act 2001 (Australia), New South Wales Supreme Court
    Authors:
    Kim MacKay
    Location:
    Australia
    Firm:
    Holding Redlich
    Banksia: Court of Appeal overturns approval of distributions to litigation funder
    2018-11-29

    Introduction

    In Botsman v Bolitho [2018] VSCA 278, the Court of Appeal unanimously allowed an appeal from the decision of Croft J to approve the settlement of two related proceedings arising from the failed merger of Banksia Securities Limited (Banksia) and Statewide Secured Investments Limited (Statewide).

    Filed under:
    Australia, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria, Victoria Supreme Court
    Authors:
    James Claridge
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    Business as Mutual: Floating Charges No Obstacle to Mutual Set-Off Agreements
    2018-11-29

    In Short

    The Situation: Section 553C of the Corporations Act 2001 (WA) ("Act")provides that if a creditor and a company in liquidation have mutual dealings, the creditor must offset any sum the creditor owes to the company in liquidation against debt owed by the company.

    The Question: Does the existence of a third party security interest over circulating assets (floating charge) which are intended to be set off against other debts prevent the dealings from being "mutual"?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Liquidation, Corporations Act 2001 (Australia)
    Authors:
    Lucas Wilk , Evan J. Sylwestrzak , Roger Dobson
    Location:
    Australia
    Firm:
    Jones Day
    Trustees chasing dead directors over dodgy deductions
    2018-11-29

    In this proceeding, the Full Court of the Federal Court considered three main issues:

    • whether certain on-lending arrangements gave rise to legitimate tax deductions for interest;
    • duties and liabilities of directors who were not directly involved in the impugned transactions; and
    • costs payable by a representative where claims were brought against the estate of a deceased director and the representative of that estate, in his own right.

    Facts

    Filed under:
    Australia, Israel, Banking, Company & Commercial, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria, Tax deduction, Federal Court of Australia
    Authors:
    Neale Paterson
    Location:
    Australia, Israel
    Firm:
    The Commercial Bar Association of Victoria

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