Re Patrick Cowley and Lui Yee Man, Joint and Several Liquidators of the Company [2020] HKCFI 922(date of judgment: 27 May 2020)
The judgment in RCR Tomlinson Ltd (Admins apptd) [2020] NSWSC 735 provides clarification regarding the classification of circulating and non-circulating assets for the purpose of section 561 of the Corporations Act 2001 (Cth) (Act). The decision provides useful guidance for insolvency practitioners classifying circulating and non-circulating assets.
It is said that Sisyphus, the ancient king of Ephyra, is destined for eternity to roll a boulder uphill, only to watch it roll down again. Perhaps Sisyphus should have been a liquidator. One could certainly forgive the liquidator of Aberdeen All Farm Pty Ltd (In Liq) (Aberdeen) for thinking so.
After taking appointment in February 2018, Aberdeen has been embroiled in Supreme Court litigation, by which certain parcels of land were claimed to have been held on trust for Barry McWhinney as a result of an alleged fraud.
Days ago a lawyer's answer to these questions would have been the all too often heard "well, it depends". There would have been a serious risk of any such adjudication being stopped by the court granting a mandatory injunction to halt it. Ask the same questions again now and the response would be a resounding "yes and yes!"
One of the big decisions to come out of 2020 was the Supreme Court’s judgment in Bresco Electrical Services Ltd v. Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 in which it was held an insolvent party can adjudicate a dispute.
However, the Supreme Court went on to say that an adjudicator’s decision obtained by an insolvent party may not be enforced because of the insolvency: that was something the Technology and Construction Court has to decide on a case by case basis in enforcement proceedings.
So what happened next?
There remain a number of issues in the proposed insolvency reforms that need careful deliberation, particularly where the Regulations have yet to be released for consideration.
On 1st January 2019, the revised Swiss Law on Cross-Border Insolvencies entered into force. The first experiences with the revised law are throughout positive and show that the newly introduced simplifications of the Swiss cross-border insolvency regime are increasingly used by foreign liquidators and their counsels.
Previous regime
Most companies now hold large volumes of personal data – it is almost inevitable due to the interplay between technology and business. This includes companies that become insolvent, but what obligations does a liquidator have in relation to the personal data held by a company?
In a pair of recent contrasting judgments, Re Agritrade Resources Ltd [2020] HKCFI 1967 and Re Rare Earth Magnesium Technology Group Holdings Ltd [2020] HKCFI 2260, the Hong Kong Court has once again confirmed its pragmatic approach towards applications by foreign liquidators and provisional liquidators for recognition and assistance in Hong Kong. The judgments emphasize the importance of adhering to the standard forms of order adopted by the Hong Kong courts in respect of such applications, and the need for any departure from the standard form to be fully justified.
The recent Supreme Court of Victoria decision in Re National Personnel Pty Ltd (in liquidation) [2012] VSC 508 confirms that the Court will take a broad approach in determining the true employer where the employer-employee relationship is confused and the liquidator is in doubt as to the identification of the employer.
Background