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    Business rescue: whom does a ‘binding offer’ bind?
    2015-07-07

    In terms of Section 153 (1)(b)(ii) of the Companies Act, a creditor who votes against the adoption of a business rescue plan runs the risk of having their claim purchased by another party at a value of what the creditor would have received on liquidation of the company.  In the terms of the bankruptcy laws of the United States of America this procedure is referred to as a "cram down" which is imposed on creditors in business rescue situations.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Shepstone & Wylie Attorneys, Common law, South Africa Supreme Court of Appeal
    Authors:
    Andrew Donnelly
    Location:
    South Africa
    Firm:
    Shepstone & Wylie Attorneys
    Tuning to a common law frequency
    2014-07-31

    It is common practice to find directors of a company standing surety for the company in order to secure its debts. The consequence could be severe for the sureties, because if the company is unable to pay its debt, the creditor can take legal action against the directors or other third parties in their capacity as sureties, unless the company pays its debts and the sureties are released from liability.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Hogan Lovells, Surety, Debt, Common law
    Authors:
    Alex Eliott
    Location:
    South Africa
    Firm:
    Hogan Lovells
    No Construction Lien Act (Ontario) deemed trust in bankruptcy
    2014-05-28

    In his recent decision inRoyal Bank of Canada v.Atlas Block Co. Limited, 2014 ONSC 3062 (“Atlas Block”), Justice Penny of the Ontario Superior Court of Justice (Commercial List) held that trust claims pursuant to section 8 of the Construction Lien Act (Ontario) (the “CLA”) do not survive the bankruptcy of the would-be trustee debtor.

    Filed under:
    Canada, Ontario, Construction, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Bankruptcy, Common law, Royal Bank of Canada, Ally Financial, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Sam Babe
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Priorities outside the Alberta Personal Property Security Act (PPSA)
    2014-03-17
    1.  INTRODUCTION

    S4 of the PPSA, provides that "except as otherwise provided" in the PPSA, the PPSA does not apply to a number of enumerated liens, charges or other interests, including as set out in s4(a) "a lien, charge or other interest given by an Act or rule of law in force in Alberta".

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Real Estate, DLA Piper, Solicitor, Personal property, Common law, Personal Property Security Act 1990 (Canada)
    Location:
    Canada
    Firm:
    DLA Piper
    Remotely terminating equipment use as enforcement remedy against default: understanding the legal requirements
    2013-04-15

    In recent years, manufacturers and lessors of heavy industrial equipment have installed sophisticated systems into their units which require a computer code be entered in order for the equipment to operate. This computer code may need to be updated or changed periodically. If the purchaser or lessee is in arrears in making payment to the manufacturer or lessor, the manufacturer or lessor may refuse to supply the debtor with the new access code. In effect, the manufacturer or lessor has the ability to remotely render the equipment unusable.

    Filed under:
    Canada, Insolvency & Restructuring, DLA Piper, Debtor, Accounts receivable, Common law, Default (finance)
    Authors:
    M. Sandra Appel
    Location:
    Canada
    Firm:
    DLA Piper
    Beware contractual provisions triggered (even indirectly) by a party’s insolvency
    2013-03-06

    Following a recent ruling of the Ontario Court of Appeal, parties may need to proceed cautiously in enforcing contractual rights and remedies in circumstances where there is a risk of the counterparty subsequently becoming insolvent.

    The common law has long recognized that a contractual provision which is explicitly and directly triggered by a party’s insolvency (and which thereby causes subsequent prejudice to the rights of the insolvent party’s creditors) may be unenforceable as a matter of public policy.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Common law, Court of Appeal for Ontario
    Authors:
    Anthony M.C. Alexander
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Cross-border insolvency: challenges continue as UK Supreme Court rejects Canadian approach
    2012-10-30

    October 30, 2012 - The UK Supreme Court has released a decision that significantly impacts cross-border insolvency proceedings: Rubin v. Eurofinance SA and New Cap Reinsurance Corporation v. A E Grant [2012] UKSC 46.

    Filed under:
    Canada, United Kingdom, Insolvency & Restructuring, Litigation, Bull Housser & Tupper LLP, Comity, Common law, Enforcement of foreign judgments, UK Supreme Court, United States bankruptcy court, Supreme Court of Canada
    Location:
    Canada, United Kingdom
    Firm:
    Bull Housser & Tupper LLP
    Cow Harbour true lease characterization decision released: moving in the right direction
    2012-03-23

    Whether a lease is a “true” or “finance” lease has been debated in Canadian courts for decades in many different contexts. The consequences of the categorization of a lease can have a material impact on the recovery that a lessor may have in an insolvency of its lessee. The Alberta Court of Queen’s Bench recently released its decision in the matter of Royal Bank of Canada v. Cow Harbour Ltd. and 1134252 Alberta Ltd. (“Cow Harbour”) on January 23, 2012.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, Real Estate, Cassels Brock & Blackwell LLP, Common law, Personal Property Security Act 1990 (Canada)
    Authors:
    Suhuyini Abudulai , Jonathan Fleisher
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Rights of set-off in insolvency
    2011-05-18

    When a company winds up, begins restructuring proceedings or goes bankrupt, a debtor or creditor may be able to cancel out the amount payable to the other party by using the remedy of “set‐off”. Set‐off involves the cancelling of crossliabilities between two parties who owe each other money. It is a valuable tool that can increase a creditor’s percentage of recovery and decrease the debt burden of a debtor.

    Types of Set‐off: Contractual, Legal or Equitable

    Filed under:
    Canada, Insolvency & Restructuring, Dentons, Bankruptcy, Debtor, Consideration, Debt, Common law
    Location:
    Canada
    Firm:
    Dentons
    Indalex Limited (Re)
    2011-04-19

    2001 ONCA 265 (Released 7 April, 2011)

    Companies’ Creditors Arrangement Act – Pensions – Priorities – Fiduciary Obligations – Funding Pension Plans

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, WeirFoulds LLP, Credit (finance), Surety, Fiduciary, Beneficiary, Liquidation, Common law, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada
    Location:
    Canada
    Firm:
    WeirFoulds LLP

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