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    Beware parting with possession of PPS assets
    2014-05-15

    A recent decision of the Supreme Court of Western Australia highlights the importance of properly registering security interests under the Personal Property Securities Act 2009 (Cth) (the Act).

    Filed under:
    Australia, Western Australia, Banking, Insolvency & Restructuring, Litigation, Addisons, Personal property
    Authors:
    Nicole Tyson
    Location:
    Australia
    Firm:
    Addisons
    Intention to create a trust
    2014-05-07

    Korda v Australian Executor Trustees (SA) Ltd [2014] VSCA 65

    In Korda v Australian Executor Trustees (SA) Ltd, the VSCA may have assisted the investors in a radiata pine managed investment scheme at the expense of trusts law orthodoxy.

    Filed under:
    Australia, Victoria, Banking, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria, Investment funds, Victoria Supreme Court
    Authors:
    John S Glover
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    When “insolvency remoteness” is closer than you think
    2014-05-07

    The ability of limited recourse provisions to protect borrowers and financiers against insolvency risks may be weaker due to a recent English court case.

    Limited recourse clauses are often used in project and structured finance transactions. Borrowers want to avoid the risk of their directors being liable for trading while insolvent; and financiers may want to avoid the possibility of insolvency clawback actions if they seek to enforce their security documents.

    Filed under:
    Australia, United Kingdom, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Balance sheet
    Location:
    Australia, United Kingdom
    Firm:
    Corrs Chambers Westgarth
    Effect of a company’s insolvency on an unperfected security interest
    2014-05-02

    The recent WA Supreme Court decision in White v Spiers Earthworks Pty Ltd [2014] WASC 139, highlights the consequences of not registering a security interest under the Personal Property Securities Act 2009 (PPSA) when a company becomes insolvent.

    The case also provides guidance about certain PPSA savings provisions, the treatment of transitional security interests and the primacy of PPSA over pre-PPSA legislation.

    BACKGROUND

    Filed under:
    Australia, Western Australia, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    David Abernethy , Sam Delaney , Michael Kimmins , Kirsty Sutherland
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Perfection requirements of transitional security interests under the Personal Property Securities Act 2009 (Cth)
    2014-04-08

    Central Cleaning Supplies (Aust) Pty Ltd v Elkerton [2014] VSC 61.

    Appeal from liquidators’ decision to reject claim for the return of cleaning equipment subject to retention of title. Consideration of retention of title clauses and the application of the transitional security agreements under Personal Property Securities Act 2009 (Cth).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, The Commercial Bar Association of Victoria, Liquidation, Liquidator (law), Title retention clause, Securities Act 1933 (USA)
    Authors:
    Andrea L Mapp
    Location:
    Australia
    Firm:
    The Commercial Bar Association of Victoria
    Emerging apportionment issues
    2014-04-10

    Impact of Apportionment

    The High Court decision in Hunt & Hunt v. Mitchell Morgan Nominees Pty Ltd ((2013) HCA 10) highlights the impact of proportionate liability where it applies. In that case the High Court apportioned 87.5% of the liability to bankrupt fraudsters with only 12.5% of the liability being apportioned to the solicitors who had failed to protect the plaintiff from the fraud. Without the impact of apportionment Hunt & Hunt would have been liable severally for 100% of the loss.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, White Collar Crime, McInnes Wilson Lawyers
    Authors:
    Mylton Burns , David Weng , Ingrid Lehmann
    Location:
    Australia
    Firm:
    McInnes Wilson Lawyers
    Are your terms of trade documents PPSA effective? Update your terms of trade documents and register on the personal property securities register or risk losing your assets
    2014-04-10

    If your terms of trade documents don’t have the correct provisions, you can lose goods supplied to a customer that becomes insolvent, even though you may have title to the goods.

    A recent Supreme Court decision highlights the need for retention of title suppliers to have adequate terms of trade documents and to register security interests on the Personal Property Securities Register (PPSR) to avoid losing assets if a customer becomes insolvent.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Cooper Grace Ward, Security (finance), Personal property, Title retention clause, Privacy Act 1988 (Australia)
    Location:
    Australia
    Firm:
    Cooper Grace Ward
    Farm debt mediation – how to make it successful
    2014-03-04

    The Farm Debt Mediation Act 2011 (Vic) (the Act) has been in operation for some two years and is in large part modelled on New South Wales legislation which has been operative since 1994. Since the commencement of the Act in Victoria, over 180 mediations have taken place with 95% of those mediations resulting in a settlement agreement between the parties.

    Filed under:
    Australia, Arbitration & ADR, Banking, Insolvency & Restructuring, Real Estate, Holding Redlich, Debt, Mediation, Default (finance)
    Authors:
    Kylie Hall , Howard Rapke
    Location:
    Australia
    Firm:
    Holding Redlich
    Personal Property Securities Act: final chance to preserve priority of transitional security interests
    2014-01-10

    The two year transitional period under the Personal Property Securities Act 2009 (PPSA) ends on 31 January 2014.  After this date, any remaining transitional security interests (TSIs) that have not been registered on the Personal Property Securities Register (PPSR) will no longer have their pre-PPSA priority, which could result in a secured party losing priority to other secured creditors or losing its interest in the secured property altogether if the grantor becomes bankrupt (if an individual) or is placed into administration or liquidation (if a company).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Baker McKenzie, Personal property, Title retention clause
    Location:
    Australia
    Firm:
    Baker McKenzie
    Setting aside transactions: the good faith defence
    2013-12-13

    In Madsen-Ries v Rapid Construction Ltd [2013] NZCA 489, the Court of Appeal considered an appeal concerning a liquidator's attempt to have a payment set aside. 

    Filed under:
    Australia, New Zealand, United Kingdom, Banking, Insolvency & Restructuring, Litigation, Buddle Findlay, Good faith, High Court of Australia
    Authors:
    David Perry , Scott Barker , Willie Palmer
    Location:
    Australia, New Zealand, United Kingdom
    Firm:
    Buddle Findlay

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