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    Practical issues of private international law arising in cross-border insolvencies
    2019-07-19

    Forum bias, along with some technical issues, are still challenges in cross-border insolvencies in Australia

    Just over ten years ago, Lehman Brothers filed for bankruptcy in the US, which turned out to be one of the largest cross-border insolvency cases in history.

    Last year also marks:

    Filed under:
    Australia, Global, United Kingdom, USA, Banking, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Bankruptcy, Debtor
    Authors:
    Karen O'Flynn
    Location:
    Australia, Global, United Kingdom, USA
    Firm:
    Clayton Utz
    Australian restructuring gets a boost as High Court supports the holding DOCA concept
    2018-09-12

    Some 25 years after Harmer promised a faster, more efficient and commercial approach for dealing with failed and failing companies, Australia's highest court has this morning confirmed that creditors can contractually bind a company and all stakeholders to a moratorium extension via a properly formed holding DOCA (Mighty River International Limited v Hughes [2018] HCA 38; Clayton Utz acted for the successful Deed Administrators of Mesa Minerals Limited).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Cameron Belyea , Karen O'Flynn , Jennifer Ball , Zac Chami , Brett Cook , Alistair Fleming , Graeme Gurney , Paul James , Gareth Jenkins , Orla McCoy , Nick Poole , Timothy Sackar , Scott Sharry , Graeme Tucker , Sally Stitz
    Location:
    Australia
    Firm:
    Clayton Utz
    Deleveraging to control
    2017-12-15

    As deleveraging to control transactions continue to be part of the legal landscape in Australia, we anticipate seeing further examples, particularly where the distressed company is a listed entity. 

    Filed under:
    Australia, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Corporations Act 2001 (Australia), Australian Securities Exchange
    Authors:
    Timothy Sackar
    Location:
    Australia
    Firm:
    Clayton Utz
    Short cuts make for even longer delays
    2016-08-04

    Any legislation or action which seeks to alter the pari passu distribution of an insolvent company's property amongst its creditors needs to be very carefully and comprehensively considered, and have regard to accrued rights and interests.

    Filed under:
    Australia, Western Australia, Insolvency & Restructuring, Litigation, Tax, Clayton Utz, Income tax, Liquidation, Liquidator (law), Pro rata, Corporations Act 2001 (Australia), High Court of Justice, High Court of Australia, Singapore High Court
    Location:
    Australia
    Firm:
    Clayton Utz
    Does a DOCA release a company from a debt arising under a guarantee?
    2015-08-06

    Key Points:

    A DOCA can extinguish claims under a guarantee, even where those claims arise following the DOCA's termination.

    If the underlying debt has already been extinguished by a DOCA, can a secured creditor still enforce the charge? A recent case explored the role of section 444D(2) of the Corporations Act in this situation, with implications for parties seeking to rely on guarantees from companies that have been through a DOCA (Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Debt, Secured creditor
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Strict compliance with the Corporations Act mandatory for a section 560 subrogation claim
    2013-10-10

    Key Points:

    For a company to be entitled to subrogation under section 560, it must ensure that it meets the strict requirements of section 560 and does not pay entitlements directly to the relevant company's employees.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Joint and several liability, Corporations Act 2001 (Australia)
    Authors:
    Paul James , Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Increased incidence of insolvency in NSW construction industry leads to government inquiry
    2012-08-16

    A particular focus of the inquiry will be the consequences of such insolvencies for sub-contractors.

    In the wake of a recent spate of contractors becoming insolvent, the NSW Government has announced an inquiry into insolvency in the construction industry and is seeking submissions from interested parties. Submissions to the inquiry are due by 14 September 2012.

    Filed under:
    Australia, New South Wales, Construction, Insolvency & Restructuring, Clayton Utz
    Authors:
    Narelle Smythe
    Location:
    Australia
    Firm:
    Clayton Utz
    How far can a creditor push a distressed company?
    2010-03-31

    The law of "shadow directors" means that a person who effectively controls a board of a company, even though that person is not a director, may find himself being legally classified as a director of the company. That carries with it the threat of legal liability for the company's insolvent trading debts in the event that the company goes into liquidation.

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Board of directors, Debt, Liquidation, Liquidator (law), Apple Inc
    Location:
    Australia
    Firm:
    Clayton Utz
    Lien & mean - going toe to toe with contractual, statutory & common law liens
    2022-05-26

    Property claims, especially lien claims, are common in the current environment of supply chain disruption and delay. Most contractual, statutory and common law lien claims, including where the Personal Property Securities Act 2009 (Cth) is involved, will turn on timing, scope and quantum arguments. In this article, we outline the usual levers in a lien dispute from the debtor and creditor perspectives and make some suggestions for getting to a commercial resolution.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Supply chain, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    To vest the security interest or not to vest the security interest after a restructuring?
    2020-12-10

    Companies post-restructuring are not subject to the rules protecting creditors of insolvent companies in section 588FL of the Corporations Act 2001.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz

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