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    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
    Market review
    2021-10-04

    Unusual circumstances have spurred innovation and ground-breaking responses which will reshape restructuring and insolvency.

    Just when you thought it was safe to return to your favourite local restaurant and that COVID-19 had exclusive rights to 2020, we find ourselves once again working from home and having to cope with the lingering effects of the virus. Unfortunately for corporate Australia, the COVID virus is as contagious as it always was for your business… but there is a light at the end of the tunnel for some.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Coronavirus
    Authors:
    Timothy Sackar
    Location:
    Australia
    Firm:
    Clayton Utz
    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
    Exemptions to the stay on ipso facto clauses released for comment
    2018-04-20

    Stakeholders have until 11 May 2018 to comment on a key part of the new ipso facto regime – the exceptions to the statutory stay on ipso facto clauses in certain categories of contracts and rights.

    The new insolvency legislation commencing 1 July 2018 (Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017) introduces a statutory stay on the exercise of contractual rights arising by reason of certain insolvency trigger events.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Location:
    Australia
    Firm:
    Clayton Utz
    Major decision on set-off and security interests in insolvency may lead to significant contractual change
    2017-06-07

    The limitations of set-off in a liquidation scenario and the nature and effect of a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) have been clarified, with significant ramifications for principals and financiers, who should now review their rights, following the WA Supreme Court's decision in Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] WASC 152 (Clayton Utz acted for the successful receivers).

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

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