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    Motive irrelevant as insurer's attempt to expand the operation of an insolvency exclusion in D&O policy fails
    2019-06-27

    A recent Full Court decision is a win for directors who hold D&O insurance policies, as well as those seeking to bring proceedings against directors of an insolvent company – probably to the dismay of insurers.

    Filed under:
    Australia, United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Clayton Utz, Financial Conduct Authority (UK)
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz
    NSW Conveyancing Act a useful tool for creditors and insolvency practitioners
    2018-08-30

    Section 37A can be used by future, contingent and prospective creditors to recover assets, meaning the transferor need not be indebted at the time of the transfer.

    Recovering assets from a debtor is usually done via the recovery provisions in the Corporations Act 2001 (Cth) or theBankruptcy Act 1966 (Cth), but there is another option, at least in New South Wales, which offers creditors, insolvency practitioners and any prejudiced parties a useful alternative. A recent case demonstrates its advantages (Lardis v Lakis [2018] NSWCA 113; Clayton Utz acted for the successful creditor).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Real Estate, Clayton Utz
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    The timely rise of phoenix reforms
    2017-10-12

    The reforms proposed to combat illegal phoenix activity range from light-touch through to more significant changes to the Corporations Act.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz, Corporations Act 2001 (Australia), Australian Taxation Office
    Authors:
    Nick Poole , Anthony Burke
    Location:
    Australia
    Firm:
    Clayton Utz
    No green light for establishing causation in shareholder claims
    2016-05-12

    Key Points:

    While shareholders may only need to establish indirect market causation, there are still significant obstacles for establishing shareholder claims.

    Do plaintiffs in a shareholder class action have to show they relied upon misleading or deceptive conduct, or is it enough that the market in general relied upon them, which then affected the share price?

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Shareholder, Class action, Causation (law)
    Location:
    Australia
    Firm:
    Clayton Utz
    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

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