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    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
    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
    Will debtor in possession be the future of insolvency?
    2021-10-04

    Overseas developments might have inspired mooted changes to create a debtor in possession model in Australia.

    2021 began with a sense of optimism, but COVID-19 is continuing to wreak havoc on the Australian economy. The Commonwealth Bank of Australia is forecasting a 0.7% decline GDP in the September quarter and a likely rise in unemployment in July. New South Wales in particular, is expected to be hit very hard.

    Filed under:
    Australia, Capital Markets, Employee Benefits & Pensions, Insolvency & Restructuring, Clayton Utz, Coronavirus, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball
    Location:
    Australia
    Firm:
    Clayton Utz
    Priority creditors and circulating security interests: what's a liquidator to do?
    2020-08-31

    The Corporations Act 2001 sets out a regime for the order in which certain debts and claims are to be paid in priority to unsecured creditors.

    That's straightforward enough for a liquidator, right?

    Unfortunately, matters are not that straightforward. In effect, there are two priority regimes under the Act for the preferential payments of particular creditors, each of which applies to a different "fund", and we've observed this has led to some liquidators being unsure of how to proceed – or even worse, using funds they should not.

    Filed under:
    Australia, United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Insolvency Act 1986 (UK)
    Authors:
    Nick Poole , Jonathon McRostie
    Location:
    Australia, United Kingdom
    Firm:
    Clayton Utz

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