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    Out of the director shadows to imprisonment: the lessons for insolvency practitioners from the Kleenmaid prosecution
    2020-03-05

    ASIC is becoming more serious and more active and will take action against directors if there is su cient reason to, so insolvency practitioners should consider all possible actions/recoveries fully in any report to ASIC. 

    A company's financial distress presents a challenge for its directors and officers of large and complex financial services companies and can raise a range of difficult issues, including potential liability for insolvent trading, which potentially exposes directors both to civil and criminal consequences under the Corporations Act 2001(Cth).

    Filed under:
    Australia, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Australian Securities and Investments Commission, Deloitte
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    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:
    Scott Sharry
    Location:
    Australia
    Firm:
    Clayton Utz
    No pooling of accounts where clients’ interests in mixed funds are not rateably equal
    2018-03-29

    The Court will closely examine the relevant transactions involving the accounts and form a view – which may be an impressionistic one – as to the likely extent of the interest of each client (or each client group) in those accounts.

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation
    Authors:
    Karen O'Flynn , Flora Innes
    Location:
    Australia
    Firm:
    Clayton Utz
    Moral hazard hits China ‒ be prepared for the fallout
    2016-12-08

    We are seeing attempts by the Chinese Government to provide the market with more sophisticated tools for dealing with unprofitable companies.

    China is attempting to align its insolvency regime to international standards and introduce additional tools for dealing with the country's rising debt load.

    Australian lenders with exposures to these debts (particularly in the coal, steel, manufacturing, cement, shipbuilding, solar, heavy machinery, mining and property sectors) should reassess insolvency risk and understand their options.

    Filed under:
    China, Insolvency & Restructuring, Clayton Utz
    Authors:
    Nick Poole , Anthony Burke
    Location:
    China
    Firm:
    Clayton Utz
    Safe harbour for directors will not save more companies
    2015-11-26

    Key Points:

    It's unclear that safe harbours by themselves will provide genuine opportunities for restructuring distressed businesses.

    The Productivity Commission's upcoming report on corporate insolvency will address two burning issues: ipso facto clauses and how to encourage directors to save financially-stressed companies.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz
    Authors:
    Karen O'Flynn
    Location:
    Australia
    Firm:
    Clayton Utz
    Budget sets new maximum payment for redundancy pay under the Fair Entitlements Guarantee
    2014-05-14

    One of the many changes to be implemented as part of the Federal Budget delivered last night was a change to the Fair Entitlements Guarantee (FEG) (previously known as the General Employee Entitlements and Redundancy Scheme or GEERS), which  guarantees certain unpaid employee entitlements in the event of insolvency or bankruptcy of that person's employer.

    Filed under:
    Australia, Employment & Labor, Insolvency & Restructuring, Clayton Utz
    Authors:
    Jennifer Ball , Cameron Belyea , Peter Bowden , Zac Chami
    Location:
    Australia
    Firm:
    Clayton Utz
    Nine Entertainment - debt for equity swap agreed
    2012-10-25

    Key Points:

    What the protracted negotiations surrounding Nine Entertainment have demonstrated is the importance of an interested party being able to assert they have an economic interest in the company.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Interest, Hedge funds, Debt, Valuation (finance)
    Authors:
    Peter Bowden , Nick Poole , Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    Variations to charges: High Court dismisses the appeal in Octaviar
    2011-02-02

    Key Points: The High Court held there was no variation in the terms of the Charge and therefore no registration was required.

    On 1 September 2010 the High Court handed down its much anticipated decision in the appeal from the Queensland Court of Appeal in Re Octaviar Ltd (No 7) [2009] QCA 282, unanimously dismissing the appeal in Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd [2010] HCA 29.

    The fixed and floating charge

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Credit (finance), Surety, Debt, Deed, Liability (financial accounting), Legal burden of proof, Capital punishment, Subsidiary, Corporations Act 2001 (Australia), Queensland Supreme Court, High Court of Australia
    Location:
    Australia
    Firm:
    Clayton Utz
    Peak uncertainty - wait and see the ultimate effect
    2021-10-04

    The abolition of the "peak indebtedness" rule will complicate liquidators' tasks, not least its adverse effect on pursuing preferences where it's unclear what forms the single transaction.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Authors:
    Jonathon McRostie
    Location:
    Australia
    Firm:
    Clayton Utz
    Marshalling the troops when debtors become insolvent: A refresher on the equitable doctrine of marshalling
    2019-10-31

    The equitable doctrine of marshalling can protect the security interests of subordinate secured creditors when a debtor becomes insolvent.

    Marshalling is a neglected tool in the insolvency toolbox, but it can play an important role in protecting the security interests of subordinate secured creditors.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz, Debtor
    Authors:
    Jonathon McRostie
    Location:
    Australia
    Firm:
    Clayton Utz

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