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    Breaches of the Code of Banking Practice result in a challenge to the enforcement of a guarantee
    2016-07-08

    This week’s TGIF considers the most recent decision in a line of cases which hold that the provisions of the Code of Banking Practice may be incorporated into loan agreements, as well as guarantees given by individuals.

    BACKGROUND

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Contractual term, Shareholder, Surety, Debtor, Breach of contract, Discovery, Joint venture, Warranty, National Australia Bank, Commonwealth Bank, Victoria Supreme Court, Court of Appeal of England & Wales
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Does a breach of clause 25.1 of the code of banking practice render a guarantee void? It appears not
    2016-02-12

    This week’s TGIF considers the decision of Commonwealth Bank of Australia v Currey in which the Court looks at whether a breach of clause 25.1 of the Code of Banking Practice renders a guarantee void or voidable.

    BACKGROUND

    A bank lent money to a family company, which was secured by personal guarantees provided by the applicants. 

    Filed under:
    Australia, Queensland, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Breach of contract, Commonwealth Bank
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    JSC BTA Bank v A [2010] EWCA Civ 1141: appointment of a receiver
    2011-06-08
    1. Introduction

    Most reading this will know that freezing orders are granted to prohibit defendants from disposing of or dissipating their assets in a way that will prevent the claimant from enforcing any judgment he obtains. If the defendant disobeys, he is at risk of contempt. But the primary purpose of contempt is to punish the defendant. Many claimants will simply be concerned to ensure that the defendant’s money is frozen.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Injunction, Breach of contract, Discovery, Holding company, Contempt of court, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Non-disclosure of corporate re-organisation and breach of warranty (again)
    2010-11-10

    By a judgment handed down on 26 October 2010 in Sugar Hut Group Ltd & Ors v Great Lakes Reinsurance (UK) Plc & Ors [2010] EWHC 2636 (Comm), Mr Justice Burton in the Commercial Court held that insurers were entitled to avoid, for a material non-disclosure of a corporate re-organisation, a policy which could otherwise have covered losses arising from a fire at the premises of the insureds.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Herbert Smith Freehills LLP, Shareholder, Breach of contract, Reinsurance, Public limited company, Non-disclosure agreement, Warranty, Underwriting, Subsidiary, High Court of Justice, Commercial Court (England and Wales)
    Authors:
    Alexander Oddy
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    The defence and settlement of third party claims
    2010-03-30

    In Clare Horwood & Others v Land of Leather Limited (In Administration) and Zurich Insurance Plc the Commercial Court was asked to consider in the context of a claim under the Third Parties (Rights Against Insurers) Act 1930 whether a compromise agreement entered into by an insured without the insurer's specific instructions in writing was in breach of a policy term. Under the compromise agreement, the insured had released a third party from an obligation to indemnify it in respect of various personal injury claims.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Product Regulation & Liability, Herbert Smith Freehills LLP, Contractual term, Condition precedent, Breach of contract, Consideration, Good faith, Commercial Court (England and Wales)
    Authors:
    Alexander Oddy
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal holds that anti-deprivation principle does not apply to provisions relating to the termination of an IP licence on insolvency
    2010-03-02

    The anti-deprivation principle provides that “there cannot be a valid contract that a man’s property shall remain his until his bankruptcy, and, on the happening of that event, go over to someone else, and be taken away from his creditors”.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Intellectual Property, Litigation, Herbert Smith Freehills LLP, Share (finance), Bankruptcy, Breach of contract, Interest, Joint venture, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Solicitors and advisors to face liability for directors’ breach
    2009-11-13

    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.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Breach of contract, Dividends, Debt, Liability (financial accounting), Liquidation, Good faith, Unsecured creditor, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal determines effect of party's insolvency in one EU jurisdiction on arbitral proceedings in another
    2009-10-05

    Background

    Article 4.1 of Council Regulation (EU) No 1346/2000 of 29 May 2000 on Insolvency Proceedings (the "Regulation") states: "Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened..."

    Article 4.2 of the Regulation sets out a non-exhaustive list of the matters which the law of the state of the opening of insolvency proceedings is to determine, including:

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Debtor, Breach of contract, Arbitration clause, In rem jurisdiction, Arbitration Act 1996 (UK)
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Court of Appeal determines effect of party's insolvency in one EU jurisdiction on arbitral proceedings in another
    2009-10-05

    Background

    Article 4.1 of Council Regulation (EU) No 1346/2000 of 29 May 2000 on Insolvency Proceedings (the "Regulation") states: "Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened..."

    Article 4.2 of the Regulation sets out a non-exhaustive list of the matters which the law of the state of the opening of insolvency proceedings is to determine, including:

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Bankruptcy, Debtor, Breach of contract, Arbitration clause, In rem jurisdiction, Arbitration Act 1996 (UK), London Court of International Arbitration
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    "Pre-pack" administrations - issues and practical points for landlords
    2009-07-10

    This is the third of a series of four e-bulletins in relation to administrations and company voluntary arrangements (CVAs).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Real Estate, Herbert Smith Freehills LLP, Unsecured debt, Injunction, Breach of contract, Landlord, Leasehold estate, Debt, Consent, Credit risk, Court of Appeal of England & Wales
    Authors:
    Stephen Gale , Gawain Moore
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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