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    Hurry Up and Wait - Liquidator in holding pattern while Re Amerind decided
    2018-07-13

    This week’s TGIF considers In the matter of MJM(WA) Enterprises Pty Ltd (in liq) [2018] NSWSC 944, where the Court approved a liquidator’s remuneration but deferred decisions about trust distributions until after the Re Amerind litigation finishes.

    What happened?

    The company operated two barbershops in Perth as trustee for a family trust before liquidators were appointed in May 2017.

    Filed under:
    Australia, Victoria, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Corrs Chambers Westgarth, Corporations Act 2001 (Australia), Victoria Supreme Court
    Authors:
    Cameron Cheetham , Craig Ensor , Kirsty Sutherland , Mark Wilks , Matthew Critchley , Michael Catchpoole , Michelle Dean , Sam Delaney , Estelle Blewett , David Abernethy
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Administrator wipeout! Claimants stoked as Court dumps nominal value for class action claims
    2018-03-02

    This week’s TGIF considers In the matter of SurfStitch Group Limited [2018] NSWSC 164, where the Court refused to allow administrators to value claims of class action group members at a nominal $1 for voting at the second creditors’ meeting.

    What happened?

    On 11 December 2017, the administrators of SurfStitch filed an application seeking orders:

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Shareholder, Class action
    Authors:
    Kirsty Sutherland , Mark Wilks , Matthew Critchley , Sam Delaney , Estelle Blewett , Michelle Dean
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Signed on the dotted line? Proving execution of personal guarantees
    2017-09-29

    This week’s TGIF considers Singh v De Castro [2017] NSWCA 241, where the New South Wales Court of Appeal held that five directors of an insolvent corporate borrower had executed and were bound by personal guarantees.

    BACKGROUND

    The decision was an appeal from a decision of the District Court of New South Wales finding that five directors of an insolvent corporate borrower had executed and were bound by personal guarantees.

    Filed under:
    Australia, New South Wales, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    Kirsty Sutherland , Mark Wilks , Matthew Critchley , Rachael King , Sam Delaney
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Taste of bias: Court rejects assertion of lack of independence
    2017-05-05

    This week’s TGIF considers an objection by directors and related-party creditors to a liquidator retaining solicitors who had previously acted for a substantial creditor in proceedings against the company.

    What happened?

    On 15 August 2016, a statutory demand was issued to the operator of a Chinese dumpling restaurant. The restaurant operator failed to comply with the demand and was wound up by order of the Court. The petitioning creditor also obtained orders for the appointment of a liquidator to the restaurant operator.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley , Sam Delaney , Estelle Blewett , Michelle Dean
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Court refuses mandatory examination of liquidator
    2016-10-07

    This week’s TGIF considers the decision of Kimberley Diamonds Ltd, in the matter of Kimberley Diamond Company Pty Ltd (in liq) [2016] FCA 1016 in which the Court refused to allow the mandatory examination of a liquidator under s 596A.

    BACKGROUND

    In July 2015, administrators were appointed to a company which operated a diamond mine. A marketing campaign in respect of the mining operations of the company commenced shortly after the administrators’ appointment.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Corporations Act 2001 (Australia)
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Commissioner of Taxation circumvents the abolition of taxation priority in liquidations
    2016-05-06

    This week’s TGIF considers the recent NSW Court of Appeal decision of Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69 in which the Court considered the validity of the Commissioner of Taxation’s treatment of debits and credits in an insolvency context.

    FACTS

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Tax, Corrs Chambers Westgarth, Tax deduction, Commissioner of Taxation (Australia), New South Wales Supreme Court
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    When can a guarantor rely on a right of subrogation?
    2015-10-30

    This week’s TGIF considers the case of Bowesco Pty Ltd v Westpoint Management Ltd [2015] WASCA 184, which considered whether a guarantor had a right of subrogation enabling it to be repaid in advance of the second ranking creditor. 

    BACKGROUND

    Filed under:
    Australia, Western Australia, Banking, Construction, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Court allows deed administrator to transfer shares in a company’s restructure without the consent of the shareholders
    2015-03-27

    Background

    In In the matter of Nexus Energy Ltd (subject to a deed of company arrangement) [2014] NSWSC 1910, the deed administrators of Nexus Energy Limited (subject to a Deed of Company Arrangement) (Nexus) sought leave of the Court to transfer all ordinary shares in Nexus to SGH Energy (No 2) Pty Ltd (SGH2). SGH2 was the proponent of the Deed of Company Arrangement (DOCA) and was also associated with the secured lender.

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Share (finance), Shareholder
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Directors’ duties: the inflexibility of the conflict rule
    2014-09-24

    On 11 September 2014, the Supreme Court of New South Wales delivered judgment in Allco Funds Management Limited (Receivers and Managers Appointed) (In Liquidation) v Trust Company (RE Services) Limited (in its capacity as responsible entity and trustee of the Australian Wholesale Property Fund) [2014] NSWSC 1251.

    The decision reminds directors of the risks associated with their involvement in transactions where they are in a position of conflict.

    BACKGROUND

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    Sam Delaney
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    When “insolvency remoteness” is closer than you think
    2014-05-07

    The ability of limited recourse provisions to protect borrowers and financiers against insolvency risks may be weaker due to a recent English court case.

    Limited recourse clauses are often used in project and structured finance transactions. Borrowers want to avoid the risk of their directors being liable for trading while insolvent; and financiers may want to avoid the possibility of insolvency clawback actions if they seek to enforce their security documents.

    Filed under:
    Australia, United Kingdom, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Balance sheet
    Location:
    Australia, United Kingdom
    Firm:
    Corrs Chambers Westgarth

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