Introductie

In het eerste kwartaal van 2023 zijn op www.rechtspraak.nl verschillende uitspraken gepubliceerd waarin de ingestelde vordering gegrond was op bestuurdersaansprakelijkheid.

In deze Kwartaalupdate Bestuurdersaansprakelijkheid voor Q1 2023 is een selectie gemaakt uit deze uitspraken. De navolgende onderwerpen komen aan bod:

01. Feitelijk bestuurder wanneer is sprake van `terzijde stellen van het bestuur'? (Hoge Raad 24 maart 2023) 2

02. Schending boekhoudplicht, niet slechts bij ontbreken van administratie (Gerechtshof 's-Hertogenbosch 10 januari 2023)5

Although it’s inaccurate to say that the Chinese character for “crisis” combines the characters for danger and opportunity, the thought has resonated since President Kennedy repeatedly used this trope in his presidential campaign speeches.

Sometimes a debtor is liable for fraud that she did not personally commit,” held the U.S. Supreme Court on Feb. 22, 2023, when the debtor’s business partner had deceptively obtained money by fraud, thereby making the innocent partner liable for a nondischargeable debt under Bankruptcy Code (Code) §523(a)(2)(A) (“any debt from money “obtained by … fraud” not dischargeable and survives debtor’s bankruptcy). Bartenwerfer v. Buckley, 2023 WL 2144417 (Feb. 22, 2023).

On 28 September 2022, the Parliamentary Joint Committee on Corporate and Financial Services (“Committee”) began an inquiry into corporate insolvency in Australia, the first of its kind in over 30 years. The Committee invited submissions from interested persons and stakeholders to provide recommendations on how best to improve Australia’s corporate insolvency framework. Submissions have now closed, with contributions from over 50 industry bodies, government bodies and various representative bodies and groups.

Bankruptcy lawyers recently gained access to a promising technology for improving the efficiency of tasks like drafting a motion for relief from stay. ChatGPT allows users to employ generative artificial intelligence by chatting with a chatbot on OpenAI’s website https://chat.openai.com/chat.

The Estonian Bankruptcy Act has been amended to establish the Insolvency Division, a state entity responsible for supervising the activities of insolvent debtors and funding bankruptcy proceedings where it deems it necessary to improve the business culture. Modelled after the Finnish bankruptcy ombudsman’s institution, the service aims to bring more efficiency to bankruptcy proceedings. The Insolvency Division is highly anticipated and welcomed, as the previous supervision system did not meet expectations in satisfying creditors’ claims or identifying the causes of debtor insolvency.

A two-judge bench of the Supreme Court of India (“Supreme Court”) in its recent judgment Abhishek Singh v. Huhtamaki PPL Ltd.

The High Court has clarified the grounds for challenging a CVA for guarantee creditors.

Background

Mizen Design/Build Ltd's (Mizen) directors proposed a CVA stating that this would lead to a better result for unsecured creditors than the likely alternative, administration.

The CVA compromised guarantee creditors' ability both to bring a claim against Mizen and to call upon their performance guarantees against Mizen's parent company (the Parent Guarantor).

Queensland tourism icon “The Big Pineapple” recently tasted sweet success in the Queensland Supreme Court with judgment setting aside a creditor’s statutory demand issued against it as part of an ongoing multi-million dollar dispute amongst investors.

Current economic conditions and market instability are likely to see more Australian companies fall into distress in 2023 — creating both opportunities for proactive restructuring as well as distressed asset sales.

That's one of the predictions in this year's edition of From Red to Black, Clayton Utz's annual review of the dynamics of Australia's Restructuring and Insolvency (R&I) market.