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    My claim is bigger than yours: set-off against insolvent claimants under Security of Payment Act
    2015-03-05

    Key Points:

    Principals or contractors dealing with insolvent downstream companies should ensure they can properly substantiate any counterclaims.

    Usually a principal is not entitled to rely on a set-off or counterclaim to resist court proceedings to recover a debt under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act). However because of the operation of section 553C of the Corporations Act, the situation is different if the claimant is in liquidation.

    Insolvent subcontractor’s claim

    Filed under:
    Australia, Construction, Insolvency & Restructuring, Clayton Utz, Subcontractor, Liquidated damages
    Authors:
    Jonathan McTigue
    Location:
    Australia
    Firm:
    Clayton Utz
    Response to the Collins Inquiry in construction industry insolvency: bonds, new offences
    2013-04-18

    The NSW Government has accepted some of the key recommendations of the Recommendations of the Independent Inquiry in Construction Industry Insolvency in NSW, including the introduction of bonds. We know that the Government will:

    Filed under:
    Australia, New South Wales, Construction, Insolvency & Restructuring, Clayton Utz
    Authors:
    Frank Bannon , Philip Dawson
    Location:
    Australia
    Firm:
    Clayton Utz
    Direct me if I am wrong: Early sales in voluntary administrations
    2012-03-23

    One could almost be forgiven for thinking that nowadays delayed second creditors' meetings are just par for the course.

    Applications to extend the time for the second meeting - often for months - have become quite routine, and are rarely (if ever) refused.

    Some observers might thus wonder if we are losing sight of one of the objectives of the VA procedure - that it "should be expeditious".[1]

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Virgin administrators’ approach upheld in world-first decision on key provision of international aviation convention
    2022-03-16

    The High Court today gave the first decision, globally, of a Court of ultimate appeal on the question of the construction of Article XI(2) of the Cape Town Convention's protocol on Matters Specific to Aircraft Equipment (Aircraft Protocol), which is of seminal importance for financiers and lessors of aircraft property, insolvency administrators globally.

    Filed under:
    Australia, Aviation, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Pride and prejudice (but not for creditors): Disclaimer of property set aside where liquidators hold indemnity
    2020-09-17

    Liquidators need to be mindful that a disclaimer of property may be challenged. The Supreme Court of Victoria underscored a key issue in establishing "prejudice" to creditors in a liquidation, holding that a disclaimer of property may be set aside where the liquidators are indemnified.

    Filed under:
    Australia, Victoria, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Nick Poole , Anthony Burke
    Location:
    Australia
    Firm:
    Clayton Utz
    In Amerind we (mostly) trust: navigating the statutory priority regime when winding up an insolvent corporate trustee
    2019-06-27

    While the High Court has provided some clarity on the operation of the statutory priority regime, insolvency practitioners will still need to tread carefully when dealing with corporate trustees.

    For insolvency practitioners who need clarity on how receivers and/or liquidators should pay, out of trust assets, priority employee claims arising from trust liabilities, the High Court's decision in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia & Ors [2019] HCA 20 (Amerind) is a welcome result.

    Filed under:
    Australia, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Jonathon McRostie
    Location:
    Australia
    Firm:
    Clayton Utz
    Demystifying the defence to unfair preferences and the scope for liquidators to recover benefits from third parties
    2018-08-02

    The two limbs of the defence to an unfair preference claim under section 588FG(1)(b) and (2)(b) of the Corporations Act have separate work to do.

    In a useful decision for liquidators and the insolvency industry, the WA Court of Appeal has clarified the nature of the tests creditors need to satisfy to maintain a defence to a liquidator's unfair preference claim in section 588FG(1)(b) or (2)(b) of the Corporations Act (White & Templeton v ACN 153 152 731 Pty Ltd (in liq) & Anor [2018] WASCA 119). 

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    Anti-phoenixing reforms to corporate law, tax law and insolvency now open for consultation
    2017-09-29

    New offences in the Corporations Act, a cab rank system for liquidators, and changes to tax laws have been put forward by the Australian Government in its consultation package of anti-phoenixing reforms released yesterday. Consultation closes on 27 October 2017.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Tax, Clayton Utz, Corporations Act 2001 (Australia), Australian Taxation Office
    Location:
    Australia
    Firm:
    Clayton Utz
    Don’t flip out! Government's proposals on ipso facto clauses could void securitisation flip clauses
    2016-05-06

    The Australian Government is proposing to constrain certain "ipso facto" clauses ‒ a move which could make flip clauses void. The closing date for submissions is Friday 27 May 2016.

    How would changes to ipso facto clauses affect securitisation?

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    The Nexus administration: court approval for a loan facility and limits to administrators' liability
    2014-09-18

    Key Points:

    Courts will limit an administrator's liability where proposed funding is to be used directly to advance an agenda consistent with the objects of Part 5.3A of the Corporations Act.

    A recent decision of the NSW Supreme Court highlights the flexibility of Part 5.3A of the Corporations Act and the ability of administrators to seek orders protecting their interests and facilitating restructures, and was the first stage of what promises to be a novel and challenging administration (In the matter of Nexus Energy Ltd [2014] NSWSC 1041).

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, New South Wales Supreme Court
    Authors:
    Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz

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