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    The statutory demand minefield: lessons from recent set aside applications
    2015-06-25

    Key Points:

    These three cases illustrate that strict compliance with legislative requirements continues to be imperative when serving statutory demands.

    Despite what appears to be a fairly straightforward legislative regime, creditors' statutory demands appear to generate an entirely disproportionate volume of litigation in the courts. The drastic consequences of failing to comply with a creditor's statutory demand warrant very strict compliance by creditors with the technical requirements of the regime.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Debtor
    Authors:
    Svetlana Zarucki
    Location:
    Australia
    Firm:
    Clayton Utz
    Courts won't rubberstamp an administrator's application to extend the convening period
    2013-06-06

    Six month extensions to convening periods should not be seen as a fait accompli, particularly if the administrator's application is opposed.

    There is a commonly held belief that courts will readily grant an administrator's application for an extension to the convening period. This might have been true once, but it is fast turning into an urban myth, judging by two recent decisions in the Federal Court.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Peter Bowden , Nick Poole , Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    Employee leave entitlements go back to the future
    2012-07-12

    Receivers and employees are the greatest losers from a recent chain of court cases. Unless overturned on appeal or by legislation, the cases impose financial burdens on employees and administrative burdens on receivers.

    At stake are employees' accrued leave entitlements and the statutory requirement to pay them once a company enters external administration. Employees of companies in receivership can lose entitlements they would ordinarily receive during liquidation depending entirely on the time at which a company enters administration or liquidation.

    Filed under:
    Australia, Employment & Labor, Insolvency & Restructuring, Litigation, Clayton Utz, Employment contract, Liquidation, Secured creditor, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    US Bankruptcy Court flips English decision on flip clauses in Lehman Brothers case
    2010-02-05

    On 25 January 2010, the United States Bankruptcy Court handed down its much anticipated decision in relation to an action brought in that court by two Lehman Brothers entities (the Lehman entities) against BNY Corporate Trustee Services Limited (BNY) (the US Decision).

    Filed under:
    Australia, USA, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Clayton Utz, Bankruptcy, Swap (finance), Default (finance), Title 11 of the US Code, Lehman Brothers, Court of Appeal of England & Wales, United States bankruptcy court
    Location:
    Australia, USA
    Firm:
    Clayton Utz
    Whizz… Bang! Employee creditors have priority to R&D tax refunds, and the “true employer” line of authorities upheld
    2022-04-14

    Where the key asset of a technology start up is a potential entitlement to an R&D tax refund, the Spitfire decision provides important clarity for financiers of such businesses, as well as for liquidators (and employees) of those businesses which fail.  

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Clayton Utz, Venture capital, Corporations Act 2001 (Australia), Personal Property Securities Act 2009 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    Insolvency reforms: Corporate Insolvency Reforms Bill raises more questions than it answers
    2020-11-16

    There remain a number of issues in the proposed insolvency reforms that need careful deliberation, particularly where the Regulations have yet to be released for consideration.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz, Secured creditor, Liquidator (law), Coronavirus, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    Evolving directors' duties: The emerging challenge for restructuring and insolvency practitioners
    2019-07-19

    Directors are first and foremost responsible to the company as a whole and must exercise their powers and discharge their duties in good faith in the best interests of the company and for a proper purpose. The reference to "acting in the best interests of the company" has generally been interpreted to mean the collective financial interests of the shareholders.

    Filed under:
    Australia, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    US DIP financing to the rescue for Australian retail insolvencies?
    2018-09-11

    Debtor in possession financing in the US has continued to rise, particularly in the context of retail insolvencies. In Australia, we have seen a number of high profile retail collapses in recent years. Can DIP financing solve the woes of struggling retailers in Australia?

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Debtor in possession
    Authors:
    Orla McCoy , Mikhail Glavac
    Location:
    Australia
    Firm:
    Clayton Utz
    A class of their own? Class constitution in schemes of arrangement
    2017-10-16

    The Boart Longyear decisions confirm that class constitution remains a critical issue for review when pursuing creditors' schemes of arrangement.

    The New South Wales Court of Appeal has recently confirmed the circumstances in which companies seeking approval of schemes of arrangement will be required to convene separate meetings for different classes of creditors.

    Class constitution: key principles

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Clayton Utz, Unsecured debt, Debt, Secured creditor, Corporations Act 2001 (Australia), New South Wales Court of Appeal
    Authors:
    Timothy Sackar , Jillian Robertson
    Location:
    Australia
    Firm:
    Clayton Utz
    Retention of title and the PPSA: a high steaks issue
    2016-05-26

    Key Points:

    This case provides some clarification of matters relating to registration of retention of title clauses for secured creditors dealing with grantors

    The registration of security interests on the Personal Property Securities Register (PPSR) is a critical, yet unresolved, issue in the context of the appointment of administrators and liquidators, and also for parties to sale transactions.

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

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