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    Court removes liquidators for apparent bias
    2014-08-07

    Key Points:

    Courts will remove liquidators where there's apparent bias even where it might cause significant inconvenience and expense to the liquidation.

    The Full Court of the Federal Court has found that a conflict of interest arose in circumstances where liquidators were required to investigate transactions with an entity that also refers work to the liquidators (ASIC v Franklin; Re Walton Construction Pty Ltd [2014] FCAFC 85).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Conflict of interest, Liquidator (law)
    Authors:
    Paul James
    Location:
    Australia
    Firm:
    Clayton Utz
    A hastie end to an administration
    2012-12-06

    Courts are willing, in certain circumstances, to consider the commercial realities of voluntary administrations, and can be flexible.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz
    Insolvent managed investment schemes: uncertainty and conflicts
    2011-05-30

    Few now remember that Chapter 5C of the Corporations Act can trace its origins to the afternoon of 23 July 1991. For the past year, the unlisted property trust industry had been in meltdown. The value of the assets held by the industry had fallen over 20%. Investors were scrambling to get out, and collapses seemed imminent.

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Clayton Utz, Legal personality, Market liquidity, Debt, Liability (financial accounting), Liquidation, Liquidator (law), Prima facie, Corporations Act 2001 (Australia)
    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
    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

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