A lien is the right to hold on to goods, and in some cases sell them, in order to ensure payment.  Often the debt will be connected with services related to the goods.

A lien can be obtained by contract, or in certain specific situations the law creates it automatically.  The difference can be significant.

Under the Personal Property Securities Act (PPSA), the holder of a common law or statutory lien may in some cases have special priority over a company’s secured creditors.

Types of lien

Findings last week of criminal liability in the Nathans Finance case echo the Centro ruling from the Australian Federal Court last month and make it clear that directors must apply their own judgement in the exercise of their duties rather than simply relying on management and expert advice.

The past May 24th, the National Assembly of Nicaragua, unanimously approved the Law No. 741 "Law of reforms to the Law on Trust Agreement", which was published this Tuesday 6th of June, 2017 in the Official Gazette No. 105. The law on Trust Agreement regulates the use of the trust as a security, which established that in case of breach of the secured obligation by the debtor, the trustee had to pay the debt, and afterwards recover the amount paid with the result of the auction of the trusted assets, in accordance with the terms and conditions agreed by the parties in the trust agreement.

Por unanimidad de votos la Asamblea Nacional aprobó el pasado 24 de mayo la Ley No. 950, Ley de Reformas a la Ley No. 741, Ley sobre el Contrato de Fideicomiso, la cual fue publicada el martes 6 de junio del año 2017 en la Gaceta, Diario Oficial No. 105.

Case law on the new insolvent transactions regime is scarce, even though the changes were introduced three years ago. The High Court's recent decision in Blanchett v McEntee Hire Holdings Limited examines, for the first time in New Zealand, central principles in the new voidable transactions regime.

General remarks

In the case of syndicated loans involving Polish security providers there are two legal concepts that are commonly used to secure the lenders' rights under the finance documents:

Before Polish insolvency law was significantly amended in January 2016, restructurings were extremely rare, with corporate insolvencies ending in liquidation in more than 90% of all cases. At that point, the number of insolvencies ending in the liquidation of the debtor’s assets significantly exceeded successful restructurings – the focus had been mainly on satisfying the creditors – and allowing the debtor to continue his business was not a major priority for the legislator and the courts.

Poland’s Supreme Court in a recent ruling found a grant of security for parallel debt to be invalid.

On 9 October 2009, a three-judge panel of the Supreme Court issued a judgment (file no. IV CSK 145/09), in which it ruled that the Polish legal system provides for the possibility to secure claims under a parallel debt (created under foreign law).

Facts of the case

Tax treatment in the hands of the creditor

Polish tax regulations provide three major methods for obtaining a tax deduction for irrecoverable debt: waiver or forgiveness of debt, debt write-off and revaluation write-off.