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    Spotlight on an industry aging (dis)gracefully - Rescuing residential aged care
    2020-08-31

    Residential aged care has recently been in the news for all the wrong reasons, with headlines due to the particularly heavy impact of COVID-19 on this sector, the interim findings of the Royal Commission into Aged Care Quality and Safety and the alarming declaration by Leading Age Services Australia that a pre-COVID-19 accounting review indicating that almost 200 nursing homes housing some 50,000 people were operating at an unacceptably high risk of insolvency – a finding supported by the recently released report by the Aged Care Financing Authority (ACFA) which found “near

    Filed under:
    Australia, Healthcare & Life Sciences, Insolvency & Restructuring, Clayton Utz, Coronavirus
    Authors:
    Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    Some PPSA registrations are about to expire ‒ Don't get caught out
    2019-01-08

    30 January 2019 marks the seventh anniversary of when the Personal Property Securities Act 2009 (Cth) started to apply and, as registrations against serial numbers and/or consumer property can only have a duration of 7 years, that means those types of registrations (if made in 2012) will expire automatically this year unless they are renewed.

    If you have made registrations on the PPS register that are for a period of 7 years (or less):

    Filed under:
    Australia, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Clayton Utz
    Authors:
    Graeme Tucker
    Location:
    Australia
    Firm:
    Clayton Utz
    A mixed bag for the construction industry in the exposure drafts of Ipso Facto Regulations & Declaration
    2018-04-26

    An important part of last year's package of amendments to the Corporations Act 2001 (Cth) were the ipso facto reforms which will stay the exercise of certain contractual rights relating to a counterparty's insolvency or financial position. What, if any, contracts would be exempt from the stay has been a major question, not least for the construction industry.

    This has now been answered, with the release of exposure drafts for public comment by May 11 2018 of the:

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Authors:
    Chris Slocombe
    Location:
    Australia
    Firm:
    Clayton Utz
    First judicial guidance about "perfection by possession" under the PPSA
    2017-08-31

    To perfect a security interest by possession, a secured party must have actual or apparent possession of the property. A contractual right to possess is not enough.

    We now have the first judicial guidance in Australia on the concept of "perfection by possession" under the Personal Property Securities Act 2009 (PPSA) (Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866).

    What is "perfection by possession"?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Bankruptcy, Corporations Act 2001 (Australia)
    Authors:
    Greta Burkett , Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Senate Committee: we need national security of payment legislation in 2018
    2016-02-18

    Key Points:

    A Senate Economics References Committee has recommended that the Commonwealth enact uniform national security of payment legislation, albeit with a target of around 2018 for implementation.

    Security of payment (SOP) reform discussion papers were released by the Queensland and New South Wales Governments in the run up to Christmas. That timing happened to coincide with the publication by the Senate Economics References Committee of its report "'I just want to be paid': Insolvency in the Australian Construction Industry".

    Filed under:
    Australia, Construction, Insolvency & Restructuring, Clayton Utz
    Authors:
    Frazer Moss
    Location:
    Australia
    Firm:
    Clayton Utz
    Forbearance as part of a lender's toolkit, part 1
    2014-07-24

    Key Points:

    A forbearance arrangement is a useful instrument to ensure that both the lender and the customer are aligned on the proposed turnaround or workout.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Clayton Utz
    Authors:
    Peter Bowden , Alistair Fleming
    Location:
    Australia
    Firm:
    Clayton Utz
    UK Supreme Court expands concept of submission to jurisdiction of foreign court in insolvency
    2012-12-06

    A creditor with assets in England should refrain from involvement in a foreign insolvency proceeding if it is at risk of being sued in the foreign court.

    Filed under:
    Australia, United Kingdom, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Liquidator (law), UK Supreme Court
    Authors:
    Karen O'Flynn
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz
    Insolvent unit trusts in Australia
    2011-05-30

    The Australian unit trust industry recently experienced financial difficulties. The formal legal process of handling those difficulties has revealed gaps in the Australian regulatory map.

    This article highlights some of those problems and the Government’s response to them.

    Background

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Litigation, Clayton Utz, Legal personality, Debt, Retirement, Liquidation, Liquidator (law), Unit trust, Corporations Act 2001 (Australia), The Australian, Trustee
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    Will debtor in possession be the future of insolvency?
    2021-10-04

    Overseas developments might have inspired mooted changes to create a debtor in possession model in Australia.

    2021 began with a sense of optimism, but COVID-19 is continuing to wreak havoc on the Australian economy. The Commonwealth Bank of Australia is forecasting a 0.7% decline GDP in the September quarter and a likely rise in unemployment in July. New South Wales in particular, is expected to be hit very hard.

    Filed under:
    Australia, Capital Markets, Employee Benefits & Pensions, Insolvency & Restructuring, Clayton Utz, Coronavirus, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    Priority creditors and circulating security interests: what's a liquidator to do?
    2020-08-31

    The Corporations Act 2001 sets out a regime for the order in which certain debts and claims are to be paid in priority to unsecured creditors.

    That's straightforward enough for a liquidator, right?

    Unfortunately, matters are not that straightforward. In effect, there are two priority regimes under the Act for the preferential payments of particular creditors, each of which applies to a different "fund", and we've observed this has led to some liquidators being unsure of how to proceed – or even worse, using funds they should not.

    Filed under:
    Australia, United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Insolvency Act 1986 (UK)
    Authors:
    Nick Poole , Jonathon McRostie
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz

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