An Ontario Court has provided guidance on determining a person's centre of main interests (COMI) for the purposes of the UNCITRAL Model Law on Cross-Border Insolvency (as implemented in New Zealand, in the Insolvency (Cross Border) Act 2006, and in Canada).

Under the Model Law, a "foreign main proceeding" is defined as a proceeding in the jurisdiction where the debtor has its COMI, with a presumption that a debtor company's COMI is where its registered office is.

In the matter of Free Wesleyan Church of Tonga in Australia (inc (administrators appointed) Phoenix Lacquers & Paints Pty Limited v Free Wesleyan Church of Tonga in Australia Inc (administrators appointed) & Ors [2012] NSWSC 214 (13 March 2012), the plaintiff, Phoenix Lacquers, sought a declaration regarding the validity of a resolution to remove and replace joint and several administrators of the Free Wesleyan Church of Tonga which did not succeed.  The Free Wesleyan Church of Tonga in Australia was incorporated under the Associations Incorporation Act 2009 (NSW) and

In Simpson v Commission of Inland Revenue (2012) 25 NZTC 20-119 (CA) the Court of Appeal held that receivers of a mortgagee which is not registered for GST must still account to Inland Revenue for GST on a mortgagee sale. This decision is controversial and pending possible resolution of the matter by an appeal to the Supreme Court, receivers of mortgagees that are not registered for GST should take legal advice as to how they should best proceed.

Fairfield Sentry Limited (Sentry) was a "feeder fund" that placed 95% of its investments into BLMIS.  When BLMIS was discovered to be a Ponzi scheme, Sentry suspended redemptions of its shares and went into liquidation.  Here, Sentry's liquidators sought to have redemptions paid to the defendant investors prior to the suspension returned to Sentry's fund on the grounds that the redemptions were paid under a mistake because Sentry's net asset value (NAV) was "little better than nil" due to the Ponzi scheme.

The issues were:

We reported on the first instance decision in this litigation last year (see here).  The New South Wales Court of Appeal recently delivered judgment on the liquidators' appeal.

The Supreme Court of Victoria has recently given some guidance on when a secured creditor who is entitled to enforce a charge over "the whole, or substantially the whole of the company's property" can validly appoint a company administrator.

Summary

On 30 March 2022 the High Court sanctioned a restructuring plan for Smile Telecoms Holding Limited in which the court for the first time allowed the exclusion of all but one class of creditors from voting on a restructuring plan. The sanction hearing considered several salient issues around challenges made to a plan by a creditor or shareholder, questions of jurisdiction and the concept of a "compromise or arrangement" in Part 26A of the Companies Act 2006 ("CA 2006").

Background

In what could prove to be a landmark judgment, a Dubai court ruled earlier this month that the directors of a company in bankruptcy should be personally liable for the company’s debts, to the sum of almost AED 450,000,000 (around US$ 122,000,000).

Article 144 of Federal Law No.9 of 2016 (the “Bankruptcy Law”) allows a court to order directors to pay a bankrupt company’s debts where:

A new cooperation arrangement for mutual recognition of and assistance to cross-border corporate insolvency and debt restructuring proceedings has been established between Mainland China and Hong Kong (the Cooperation Arrangement).

The Cooperation Arrangement is provided in a Record of Meeting on Mutual Recognition of and Assistance to Bankruptcy (Insolvency) proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region (the ROM) signed by the Mainland’s Supreme People's Court (SPC) and Hong Kong’s Department of Justice on 14 May 2021.

In its recent decision in Matter of First River Energy, LLC,¹ the Fifth Circuit resolved a priority dispute between lienholders regarding their competing claims to cash held by the debtor, First River Energ