The Federal Court of Australia (Court) has handed down the first reported decision on the ipso facto stay provisions contained in the Corporations Act 2001 (Cth) (Act).

簡介

英國和香港的法例均規定，債權人只可以就其應獲支付的算定金額提出破產呈請，但相關法例條文並無界定何謂「算定金額」（liquidated sum）。在Re Dusoruth (a bankrupt) Dusoruth v Orca Finance UK Ltd (in liquidation) [2022] EWHC 2346 (Ch) 一案中，英格蘭及威爾斯商業及財產法庭（「法院」）澄清，復還不當得利的申索不論如何確切，仍不能被視為算定金額，因此不能成為破產呈請的依據。

背景

申請人是一名商人，亦是在英國、英屬維爾京群島及馬爾他等多個司法管轄區註冊的多間公司的最終擁有人。他以其中一家公司進行欺詐，遊說富戶投資，然後透過無抵押貸款將資金轉移到他控制的其他公司。申請人被他其中一間正在清盤的公司（「答辯人」）基於以下債務提出破產呈請（「該破產呈請」），並於2020年11月被判定破產：

1.從答辯人的銀行帳戶支付，用於清償申請人的個人信用卡帳單的361,899.73歐元；及

Introduction

The U.S. Supreme Court has ruled that bankruptcy filers cannot avoid debt incurred by another’s fraud.

The 9-0 ruling, written by Justice Amy Coney Barrett, unanimously rejected Kate Bartenwerfer's bid to use U.S. bankruptcy code protection to eliminate debts on the grounds that she was unaware of fraudulent omissions made by her husband.

In the tenth edition of Going concerns, Stephenson Harwood’s restructuring and insolvency team covers the innovative attempt by a distressed company to shut out low-valued creditors in a scheme of arrangement, the utility of the Singapore recognition of foreign insolvencies regime to assist international liquidations, and the factors which the Singapore Courts will consider when deciding whether to stay a bankruptcy application. It has been a pleasure preparing these articles over the past five years and a big thank you to our readers!

Content

In a unanimous decision handed down on Feb. 22, 2023, the Supreme Court reinforced one of the Bankruptcy Code’s important creditor protections. In Bartenwerfer v. Buckley, No. 21-908, 598 U.S. ___ (2023), the Court confirmed, in an opinion authored by Justice Barrett, that the Bankruptcy Code bars the discharge by individual debtors of debts fraudulently obtained by the debtor’s agent or business partner.

In Bartenwerfer v. Buckley, the Supreme Court of the United States resolved confusion in the lower courts over the scope and application of 11 U.S.C. § 523(a)(2)(A), which prohibits debtors from discharging debt through bankruptcy when such debt was obtained as a result of fraudulent actions.

The new year has seen a rapid pace being set in terms of anticipated and actual legislative, regulatory and common law changes across Australia’s restructuring and insolvency regimes. The federal government’s inquiry into restructuring and bankruptcy laws is ongoing against a backdrop of sustained monetary policy interventions.

What is now known as the ‘ipso facto regime’ was introduced by the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 in September 2017, which inserted a number of provisions that provided for a stay on the exercise of certain ipso facto contractual rights in the context of corporate restructuring and insolvency procedures.

What is an ipso facto clause?

BTI 2014 LLC v Sequana SA & Others [2022] UKSC 25

Factual Background

1. In December 2008 and May 2009, the directors of a UK limited company, known as Arjo Wiggins Appleton Limited (“AWA”) distributed dividends to its parent company and sole shareholder, the defendant in the claim, Sequana SA (“Sequana”). The dividend payment in May 2009 was just over £119m.