Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458

Can the remedies available for an unreasonable director-related transaction under section 588FDA of the Corporations Act 2001 (Cth) (Act) be awarded in the case of a solvent company? This was the key legal question in the recent case of Aviation 3030 Pty Ltd (in liq) v Lao, in the matter of Aviation 3030 Pty Ltd (in liq) [2022] FCA 458. Ultimately, Justice Anastassiou answered this question in the affirmative.

一、引言

南财集团旗下 21 世纪资管研究院通过 wind 等公开渠道对债券违约情况进 行了统计。2020 年，中资美元债违约金额 104.19 亿美元，涉及违约只数 32 只， 首次违约主体 15 家；2021 年是中资美元债券集中爆发的一年，违约金额合计 274.36 亿美元，同比大幅增长 163%，折合人民币约 1740 亿元（按照 1 月 20 日汇率 6.34 计算），涉及违约债券 63 只，首次违约主体 14 家。其中，房地产 企业占据了中资美元债违约的绝大部分，2021 年房企违约金额 244.78 亿美元， 占比 90%；涉及违约债券 55 只，占比 87%。

2021 年下半年以来，重庆协信，中国泛海控股，华夏幸福，苏宁电气，蓝 光发展、新力地产、南通三建、阳光城集团、花样年、佳兆业、恒大、当代置业、 启迪科技、阳光 100、新华联、祥生控股、奥园均跨入了海外债务违约的阵营。

The new company law, which will come into force on January 1, 2023, provides for numerous adjustments and innovations regarding capital loss, over-indebtedness and (in)solvency. In this article of our blog series on the new company law, we shed light on what will have to be taken into account.

Monitoring liquidity

Claims against directors for unsuccessful tax avoidance schemes when their company enters into insolvency is not a new phenomenon, but a very recent case introduces a new potential defence for directors, as our Insolvency and Corporate Recovery specialist Tony Sampson explains.

Why would HMRC challenge a scheme?

Faced with thousands of complex potential claims from creditors, and a soon-to-expire letter of comfort, the liquidators of Forex Capital Trading Pty Ltd (in liq) sought creative and efficient relief in the Federal Court of Australia to implement an expedited adjudication process to adjudicate and admit these claims without creditors having to individually establish causation for their loss or damage: Woodhouse (liquidator), in the matter of Forex Capital Trading Pty Ltd (in liq) [2022] FCA 600.

Stoneway was advised in its CBCA proceedings by a team including: Kevin Zych, Michael S. Shakra and Joshua Foster (Restructuring & Insolvency); Richard Swan (Litigation); Kristopher Hanc (Capital Markets); Thomas Bauer and Philip Ward (Tax); and Preet K. Gill (Complex Legal Issues and Opinions).

Introduction

The issue

A "no action" clause will appear in almost all English law-governed bond trust deeds.

A no action clause provides that a bondholder (or anyone entitled to payments on the bonds) cannot, initially, proceed directly against the issuer. Instead, the right to bring a cause of action resides with the trustee and it is only if the trustee, having become bound to take action, fails to do so within a reasonable time (with the failure continuing) that a bondholder can then itself proceed directly against the issuer.

Alex Jay, Tim Symes, Charlie Mercer and Aleks Valkov consider a recent decision relating to alleged transactions defrauding creditors under section 423 of the Insolvency Act 1986 (“s423”). Stewarts act for the fifth, sixth and eighth defendants.

With effect from 9 May 2022, a new Order 74C of the Rules of the Superior Courts came into operation. Order 74C facilitates the operation of the Companies (Rescue Process for Small and Micro Companies) Act 2021, which inserted a new Part 10A into the Companies Act 2014 (Part 10A).

This briefing note provides an outline of the different processes of voluntary winding up and striking off under the Companies (Guernsey) Law, 2008 (as amended) (the “Law”).

Voluntary Winding Up