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    Set it off! The West Australian Court of Appeal breathes new life into section 553C
    2018-10-24

    The Court of Appeal - Supreme Court of Western Australian has delivered a decision confirming that a statutory set-off under s 553C of the Corporations Act can still be available to a creditor where a general security interest has attached to the amounts it is seeking to set-off (provided those amounts are circulating assets of the insolvent company), whilst leaving the door open for creditors to rely upon set-off rights at general law in those instances where set-off under s 553C is unavailable.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Johnson Winter Slattery, Liquidation, Corporations Act 2001 (Australia)
    Authors:
    Sam Johnson , Eve Thomson
    Location:
    Australia
    Firm:
    Johnson Winter Slattery
    Liquidators' power to disclaim environmental liabilities and obligations upheld (for now)
    2018-10-25

    Liquidators have more certainty about their ability to disclaim the environmental liabilities and responsibilities of a company in liquidation.

    Filed under:
    Australia, Queensland, Company & Commercial, Environment & Climate Change, Insolvency & Restructuring, Litigation, Clayton Utz, Environmental protection, Liquidation, Corporations Act 2001 (Australia), Queensland Supreme Court
    Authors:
    Stuart MacGregor , Kathryn Pacey , Scott Sharry
    Location:
    Australia
    Firm:
    Clayton Utz
    The Asia-Pacific Restructuring Review 2019 - Australian Chapter
    2018-10-25

    Global Restructuring Review is a leading source of news and insight on cross-border restructuring and insolvency law and practice, read by international lawyers, insolvency practitioners and accountants, judges, corporate counsel, investors and academi

    Filed under:
    Australia, Insolvency & Restructuring, Herbert Smith Freehills LLP
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    “Holding” DOCAs confirmed as valid by High Court of Australia
    2018-09-27

    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

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Corporations Act 2001 (Australia), High Court of Australia
    Authors:
    Paul Apáthy , Mark Clifton
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Linc Energy - High Court refuses special leave to Qld State Government
    2018-09-18

    The High Court has refused to grant the Queensland State Government (Qld Government) special leave to appeal the Queensland Court of Appeal’s March 2018 decision in favour of the liquidators of Linc Energy, concerning the liquidators’ obligations to cause Linc Energy to comply with an Environmental Protection Order (EPO).

    Filed under:
    Australia, Queensland, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Litigation, Johnson Winter Slattery, Environmental protection, Due diligence, Corporations Act 2001 (Australia), Queensland Supreme Court
    Authors:
    David Proudman , Dougal Ross
    Location:
    Australia
    Firm:
    Johnson Winter Slattery
    Business Breakfast Club September summary - The phoenix and the regulators: A liquidators perspective
    2018-09-19

    This month at Business Breakfast Club, Lachlan Abbott and Fergus McFarlane of Ernst & Young provided the liquidator’s perspective on legal and illegal phoenix activity. Owing to growing concerns around phoenix activity there has been an increase in regulatory attempts to deter and disrupt illegal phoenix activity.

    What is Phoenix Activity?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, BAL Lawyers, Liquidator (law)
    Location:
    Australia
    Firm:
    BAL Lawyers
    Priority disputes and insolvent trading trusts: High Court of Australia grants special leave
    2018-09-19

    The last few years have seen the Commonwealth increasingly crack down on misuse of the Fair Entitlements Guarantee, or FEG, program. The cases that have resulted have led to various disputes in insolvency law about the priorities of different creditors. The priorities to be applied in insolvent trading trusts have been one issue recently puzzling lawyers and insolvency practitioners alike. Relief may well be around the corner, however, as the High Court is set to weigh in.

    What the FEG?

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, McCabe Curwood, High Court of Australia
    Authors:
    Andrew Lacey , Luke Dominish
    Location:
    Australia
    Firm:
    McCabe Curwood
    DNP v NSW Trustee and Guardian
    2018-09-20

    Background Facts

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Real Estate, MinterEllison, Debt, Trustee
    Authors:
    Shane Evans , Kate Plowman , Noelia Boscana
    Location:
    Australia
    Firm:
    MinterEllison
    Respond to creditors’ demands, stat!
    2018-09-20

    A company’s non-compliance with a statutory demand is the most common method of proving its insolvency in any winding up proceedings. Generally, if it does not make good the debt under the statutory demand within 21 days of service, the company will be presumed to be insolvent. What can a company do if it disputes the legitimacy of the debt?

    The basics – compulsory winding up and statutory demands

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, McCabe Curwood
    Authors:
    Foez Dewan , Guy Lewis
    Location:
    Australia
    Firm:
    McCabe Curwood
    High Court Locks the Gate on Linc Energy Appeal
    2018-09-21

    What you need to know

    The High Court has decided not to hear an appeal about the ability of the Linc Energy Limited (Linc Energy) liquidators to disclaim property of the company - this means the liquidators could disclaim that property, including any obligations under the specific environmental protection order (EPO) issued under Queensland's environmental legislation. The current position stands that the disclaimer notice had the effect of avoiding obligations of both the company and its liquidators under the EPO.

    Filed under:
    Australia, Environment & Climate Change, Insolvency & Restructuring, Baker McKenzie
    Authors:
    David Walter , Ian Innes
    Location:
    Australia
    Firm:
    Baker McKenzie

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