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    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
    New dangers in safe harbour rules
    2015-12-14

    Key Points:

    You can lead a director to the safe harbour, but you can't make him drink.

    The Government's new approach to insolvency is long on rhetoric about risk taking and the need to remove the stigma of business failure.

    However, it is short on detailed consideration of exactly why we have legal rules for corporate and personal insolvency.

    Those rules aim to balance the interests of creditors against the need to encourage business start-ups.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Clayton Utz
    Authors:
    Karen O'Flynn
    Location:
    Australia
    Firm:
    Clayton Utz
    When can a liquidator get his or her costs and expenses?
    2014-06-26

    Key Points:

    Provided a liquidator is acting properly in conducting proceedings or realising assets, he or she is entitled to be paid fees in priority to a secured creditor.

    The High Court has recently reaffirmed the principle that a liquidator is entitled to be paid his or her costs and expenses properly incurred in realising assets of a company in priority to a secured creditor. This is so even if the fund realised was derived from an action brought against a secured creditor (Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15).

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Secured creditor, Liquidator (law)
    Location:
    Australia
    Firm:
    Clayton Utz
    UK Supreme Court reinstates settled law on enforcement of foreign judgments in insolvency
    2012-11-08

    If you’re pursuing assets in England relevant to a non-European bankruptcy or insolvency, you can’t rely on a (default) foreign judgment and must instead bring fresh proceedings in the English courts

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Clayton Utz, Bankruptcy, Enforcement of foreign judgments, Liquidator (law), Insolvency Act 1986 (UK), Court of Appeal of England & Wales, High Court of Justice, UK Supreme Court
    Authors:
    Karen O'Flynn
    Location:
    United Kingdom
    Firm:
    Clayton Utz
    The ABC of a successful corporate rescue: lessons from the court receivership of ABC2 Group Pty Ltd
    2011-05-20

    In insolvency circles, the word "success" is definitely a relative term. Often it only means that a complete meltdown of the company's business has been averted, or that employees have at least received their statutory entitlements on their way out the door.

    The ABC Learning Centre story has, however, definitely been a success by any measure – including some measures which are not generally part of the metrics of insolvency.[1] In order to see why this insolvency administration deal was both unique and uniquely successful, it is necessary to understand some of the background.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Clayton Utz, Market capitalisation, Subsidy
    Authors:
    Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz

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