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    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
    24 December 2015 Cross-border insolvency provisions at work
    2015-12-24

    Key Points:

    Complex cross-border issues can be dealt with relatively easily under the Cross-Border Insolvency Act as long as flexibility is built into the relevant orders.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Chapter 11 again mooted as an option for Australia's insolvency regime
    2014-07-10

    Key Points:

    A Senate Committee has said amendments to Australia's corporate insolvency laws should be considered to encourage and facilitate corporate turnarounds.

    The Senate Economics References Committee called for a review of Australia's corporate insolvency laws to ensure they facilitate corporate turnarounds. One suggestion was for the implementation of certain features of the US' Chapter 11 regime into Australia's insolvency laws.

    The arguments for changing the insolvency regime

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Loan to own strategies as viable restructuring tools
    2012-11-14

    Australian banks have historically relied on formal liquidation, voluntary administration and receivership processes available under the under the Corporations Act 2001 (Cth) and under general law where informal restructurings have failed. There has been little appetite for exploring alternative methods to exit distressed situations by debt trading.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Liquidation, Capital requirement, Distressed securities, Corporations Act 2001 (Australia)
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Retention of title as a defence to an unfair preference claim
    2011-05-20

    In the recent case of Dwyer & Ors and Davies & Ors v Chicago Boot Co Pty Ltd [2011] SASC 27, Chicago Boot claimed that certain payments made to it by two insolvent companies were not unfair preference payments, because of, amongst other defences, the purported application of a retention of title clause in relation to the supply of goods by Chicago Boot.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Debtor, Unsecured debt, Interest, Debt, Liquidation, Liquidator (law), Title retention clause, Corporations Act 2001 (Australia), SCOTUS
    Authors:
    Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    Selling Australia's second largest airline during a once in 100 year pandemic: how the Virgin sale unfolded
    2021-10-04

    The Virgin sale shows the flexibility of Australia's restructuring regime and sets a significant judicial precedent for future control transactions.

    Virgin Airlines restructured through voluntary administration

    On 20 April 2020, Virgin Australia and a number of its subsidiaries were placed into voluntary administration owing $7 billion of debt to around 12,000 creditors with partners at Deloitte Australia being appointed as joint and several voluntary administrators of Virgin. Clayton Utz was appointed to act for the Administrators.

    Filed under:
    Australia, Aviation, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus, Corporations Act 2001 (Australia)
    Authors:
    Timothy Sackar
    Location:
    Australia
    Firm:
    Clayton Utz
    As liquidators prefer it - the doctrine of peak indebtedness is here to stay
    2020-07-23

    This decision puts to rest some of the uncertainty which arose due to the NZCA's approach in Timberworld and helps to solidify liquidators' prospects of recovering maximum preferential payments. 

    Preferential payments can be an important source of funding for liquidators – and the recent decision in Bryant in the matter of Gunns Limited v Bluewood Industries Pty Ltd [2020] FCA 714 is a source of some relief for liquidators.

    Timberworld – uncertainty over the impact on Australian liquidators

    Filed under:
    Australia, New Zealand, Insolvency & Restructuring, Litigation, Clayton Utz, Coronavirus, Federal Court of Australia
    Authors:
    Alistair Fleming
    Location:
    Australia, New Zealand
    Firm:
    Clayton Utz
    More streamlined process, wider pool of buyers, for administrators in restructuring following Mesa Minerals decision
    2018-12-03

    Last Thursday's decision in the WA Supreme Court to allow a sale to insiders of a company subject to a deed of company arrangement will make the restructuring process smoother for administrators, who can now negotiate with a wider pool of potential purchasers, as Chapter 2E of the Corporations Act 2001 (Cth), which deals with related party transactions, will not apply (Mighty River International v Bryan Hughes and Daniel Bredenkamp as Deed Administrators of Mesa Minerals Ltd (Subject to Deed of Company Arrangement) [No 2] [2018] WASC 368; Clayton Utz acted for the deed administrators of Mes

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Corporations Act 2001 (Australia)
    Authors:
    Cameron Belyea , Karen O'Flynn , Jennifer Ball , Zac Chami , Brett Cook , Alistair Fleming , Paul James , Gareth Jenkins , Orla McCoy , Nick Poole , Timothy Sackar , Scott Sharry , Graeme Tucker , Rebecca Hanrahan
    Location:
    Australia
    Firm:
    Clayton Utz
    US District Court upholds safe harbour protection of swap agreements from ipso facto prohibitions - lessons for Australia
    2018-04-12

    In June 2016, Judge Chapman of the US Bankruptcy Court handed down a landmark decision in In re Lehman Bros. Holdings Inc., 553 B.R. 476 (Bankr S.D.N.Y.

    Filed under:
    Australia, USA, Derivatives, Insolvency & Restructuring, Litigation, Clayton Utz, Lehman Brothers, United States bankruptcy court
    Authors:
    Karen O'Flynn , Flora Innes
    Location:
    Australia, USA
    Firm:
    Clayton Utz
    Safe harbour and ipso facto insolvency reforms coming soon
    2017-05-25

    Safe harbour and ipso facto clauses reforms are closer, with the consultation on the Insolvency Laws Amendment Bill 2017 having closed last week, but further work is needed.

    The Federal Government's consultation on the safe harbour and ipso facto reforms in the draft Insolvency Laws Amendment Bill 2017 closed on 17 May 2017, so we now have a better idea of what they will look like.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz

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