This week’s TGIF considers the decision in Enares Pty Limited v Nimble Money Limited [2022] FCAFC 126, in which the Full Court considered shareholder information rights in the context of a dispute between Nimble’s board and its largest shareholder as to how to refinance Nimble’s debt.

Key takeaways

This week’s TGIF considers In the matter of Nicolas Criniti Pty Ltd (In Liquidation) [2022] NSWSC 1149 which examined the intersection between the winding up provisions in the Corporations Act 2001 (Cth) and the Building and Construction Industry Security of Payment Act 1999 (NSW).

Key takeaways

This week’s TGIF considers Hill, in the matter of Ovato Limited (Administrators Appointed) [2022] FCA 903 in which the Federal Court approved the administrators’ proposal for the Ovato Group to continue trading in order to maximise the chances of a sale as a going concern. The proposal was dependent on ongoing funding from the Ovato Group’s financier and, in that context, the administrators were able to agree to have their personal liability limited to the assets subject to the financier’s security.

Key takeaways

This week’s TGIF considers Manda Capital Holdings Pty Ltd v PEC Portfolio Springvale Pty Ltd [2022] VSC 381, a recent Victorian Supreme Court decision that focused on the effect of COVID-19 on the property market, through the lens of a mortgagee’s duties under section 420A of the Corporations Act 2001 (Cth).

Key takeaways

Summary

The Hong Kong Court and the US Bankruptcy Court have made conflicting comments regarding the discharge of New York law-governed debt by a foreign scheme of arrangement, where that scheme is the subject of recognition under Chapter 15 of the US Bankruptcy Code.

The Insolvency Service recently published a consultation with respect to the proposed implementation of the United Nations Commission on International Trade Law ("UNCITRAL") Model Law on Recognition and Enforcement of Insolvency-Related Judgments, which concerns cross-border recognition of judgments associated with insolvency proceedings, an

In Re Swiss Cottage [2022] EWHC 1495 (Ch), junior creditors argued that administrators appointed to two companies had exceeded their powers and breached their duties when selling two properties.

Background

In brief

In Japan, any out-of-court workout requires the unanimous consent of all creditors to a restructuring plan. On 4 October 2022, the Japanese government announced that it is considering introducing new out-of-court workout rules. Under the proposed new rules, a restructuring plan will be binding if a majority vote of creditors and confirmation of the court is obtained. Such a majority rule is a common feature amongst schemes of arrangement in many other countries.

In more detail

Chapter 11 Subchapter V cases are a relatively new animal in the bankruptcy world. Subchapter V was added to Chapter 11 of the Bankruptcy Code in February 2020 to provide an efficient and cost-effective alternative process for small businesses wishing to organize under Chapter 11.

Unlike regular Chapter 11 business reorganizations, Subchapter V provides for the appointment of a trustee. However, Subchapter V provides little detail about the role of these trustees. This article discusses how one court dealt with this ambiguity.

Background

Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question:

Why is the bankruptcy system a lagging adopter of mediation?”

A Surprising Answer

The old-timer gave this surprising answer:

“At the time of the Bankruptcy Code’s enactment, the bankruptcy judge was viewed as a mediator in the judge’s own court.”

The old-timer added this.  When the Bankruptcy Code was enacted: