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    A mixed bag for liquidators in High Court decisions on claims of unfair preference or other voidable transactions
    2023-02-09

    Insolvency practitioners and creditors facing voidable transaction claims will need to reassess the value of any potential or threatened unfair preference claims or other voidable transaction claims, following two important insolvency decisions in the High Court yesterday (Metal Manufactures Pty Limited v Morton [2023] HCA 1 (Metal Manufactures); Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (Badenoch).

    It held that:

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Debt, Insolvency, Corporations Act 2001 (Australia)
    Authors:
    Timothy Sackar , Jennifer Ball , Cameron Belyea , Zac Chami , Brett Cook , Alistair Fleming , Paul James , Gareth Jenkins , Orla McCoy , Karen O'Flynn , Nick Poole , Scott Sharry
    Location:
    Australia
    Firm:
    Clayton Utz
    Media Release: Education and reform key to turning around attitudes to turnaround professionals
    2023-02-07

    More Australian businesses in financial difficulty are embracing a ‘turnaround’ culture, but further structural reforms are needed to shift attitudes towards the use of turnaround professionals, according to Clayton Utz Restructuring & Insolvency partner, Cameron Belyea.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    The ipso facto stay in voluntary administration: first decision gives some (limited) guidance
    2023-02-07

    The first reported decision on the ipso facto stay provisions of the Corporations Act provides clarity that they operate as intended in voluntary administration – leaving the trickier issues for another day.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, ipso facto, Corporations Act 2001 (Australia)
    Authors:
    Orla McCoy , Mikhail Glavac
    Location:
    Australia
    Firm:
    Clayton Utz
    Australia’s corporate insolvency laws to undergo a comprehensive review
    2022-10-04

    A comprehensive review has begun into the effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy. Undertaken by the Federal Government’s Parliamentary Joint Committee on Corporations and Financial Services, the review is seeking submissions by 30 November 2022.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Coronavirus, Insolvency, Australian Taxation Office, Australian Securities and Investments Commission
    Authors:
    Timothy Sackar , Jennifer Ball , Zac Chami , Orla McCoy , Karen O'Flynn , Paul James , Nick Poole , Brett Cook , Gareth Jenkins , Scott Sharry , Cameron Belyea , Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    Third time lucky? Decision upheld to set aside disclaimer of contaminated property where liquidators hold indemnity
    2021-11-11

    Victoria's Court of Appeal has reaffirmed the risk that a disclaimer of property may be set aside where the liquidators are indemnified, and the need for liquidators to be mindful where the company holds contaminated property.

    Filed under:
    Australia, Victoria, Environment & Climate Change, Insolvency & Restructuring, Litigation, Clayton Utz, Environmental protection
    Location:
    Australia
    Firm:
    Clayton Utz
    COVID-19 temporary relief: less creative destruction, more restructuring?
    2020-08-31

    Australia has now entered its first recession in 29 years, and the Australian Government has implemented a number of legislative reforms and other initiatives to support and provide temporary relief to businesses, including stimulus payments, enhanced asset write-off and flexibility in the application of the Corporations Act 2001 (Cth).

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Clayton Utz, Private equity, Coronavirus, Corporations Act 2001 (Australia), Australian Securities Exchange
    Location:
    Australia
    Firm:
    Clayton Utz
    Important commercial purpose of D&O liability insurance upheld in "insolvency exclusion" case
    2019-02-07

    The Kaboko judgment brings comfort to directors who hold D&O insurance policies, or those seeking to bring proceedings against directors of an insolvent company, provided the claim is not based in whole or in part on the company's insolvency.

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Insurance, Litigation, Clayton Utz, Liability insurance, Corporations Act 2001 (Australia)
    Authors:
    Nick Cooper
    Location:
    Australia
    Firm:
    Clayton Utz
    Payments for insolvent claimants - approach to Security of Payment rejected as "plainly wrong" by NSW Supreme Court
    2018-04-26

    A recent NSW Supreme Court decision has decided that an insolvent contractor can claim under Security of Payment legislation, rejecting Victorian Court of Appeal precedent as "plainly wrong". It might have significant ramifications for participants in the building and construction industry across Australia.

    In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2018] NSWSC 412, the NSW Supreme Court considered the extent to which Security of Payment (SOP) legislation can be relied upon by an insolvent contractor.

    Filed under:
    Australia, Construction, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Jonathan McTigue
    Location:
    Australia
    Firm:
    Clayton Utz
    Safe harbour reforms passed, and anti-phoenixing reforms on the way
    2017-09-12

    In a big 24 hours for restructuring and insolvency, the safe harbour reforms were passed by the Senate late last night, and anti-phoenixing reforms were announced this morning.

    Safe harbour reforms

    The safe harbour laws will commence operation the day after the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 receives Royal Assent, with the ipso facto provisions set to commence on 1 July 2018 (or earlier by proclamation).

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    Insurers must come to the liquidator's party
    2016-03-03

    Key Points:

    In some circumstances a plaintiff/claimant can bypass a defendant (even an insolvent one) and seek a declaration against the defendant's insurer.

    The High Court has confirmed that, if a defendant is insolvent, the plaintiff may seek a declaration that the defendant's insurer is liable to indemnify the defendant, at least when:

    Filed under:
    Australia, Insolvency & Restructuring, Insurance, Litigation, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz

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