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    Recognition of a receiver's right to assert privilege as against a mortgagor company
    2012-11-22

    Summary

    In Carey v Korda [2012] WASCA 228, the Western Australian Supreme Court of Appeal (Court) has provided a timely confirmation that legal advisers engaged by receivers to provide advice in relation to a receivership are properly viewed as advisers to the receivers as principal, and not the mortgagor company.

    The decision will no doubt be welcomed by insolvency practitioners, as it confirms that the legal advice, and the right to invoke the associated privilege, belongs to the receivers, not the mortgagor company.

    Filed under:
    Australia, Western Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, South Africa Supreme Court of Appeal
    Authors:
    David John , Sam Dundas
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Middle East Exchange
    2010-10-29

    In last month's edition of Middle East Exchange,we looked at the risks for directors of UAE companies in financial difficulties. In this month's edition, we consider the position from the other side of the negotiating table, namely the risks for creditors when a UAE company faces financial difficulties.

    Filed under:
    United Arab Emirates, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Confidentiality, Bankruptcy, Debt, Consent, Default (finance)
    Location:
    United Arab Emirates
    Firm:
    Herbert Smith Freehills LLP
    TUPE: application to pre-pack administrations
    2009-11-17

    In August we reported that the Court of Appeal had expressed doubts as to whether the EAT in Oakland v Wellswood was right to suggest that pre-pack administrations could be insolvencies "begun with a view to liquidation" (so that TUPE does not apply to transfer employees).

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK)
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Enforcement of orders made in foreign insolvency proceedings
    2012-11-07

    In Rubin v Eurofinance SA and New Cap Reinsurance Corporation (in liquidation) and another v AE Grant and others [2012] UKSC 46, the UK Supreme Court held that:  

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Common law, Liquidator (law), UK Supreme Court
    Authors:
    Gavin Lewis , Gareth Thomas , Shaun Langhorne
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Insolvency disputes not arbitrable in Singapore
    2010-10-05

    The Singapore High Court has considered for the first time whether an action brought to avoid transactions that allegedly violated insolvency laws should be stayed in favour of arbitration. The court held that such disputes are not suitable for arbitration due to the public interest involved.

    Filed under:
    Singapore, Arbitration & ADR, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Fraud, Liquidation, Singapore High Court
    Location:
    Singapore
    Firm:
    Herbert Smith Freehills LLP
    Solicitors and advisors to face liability for directors’ breach
    2009-11-13

    Introduction

    The New South Wales Supreme Court has found a solicitor liable for facilitating unlawful ‘phoenix’ activity.1 Phoenix activity consists of transferring business assets out of an old debt-laden company (which subsequently goes into liquidation) to a new debt free company. The new company carries on the business of the old company; but the assets are put beyond the reach of the creditors of the old company.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Breach of contract, Dividends, Debt, Liability (financial accounting), Liquidation, Good faith, Unsecured creditor, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    Schemes of arrangement – releases can be part of the bargain
    2013-07-03

    Summary

    Filed under:
    Australia, Insolvency & Restructuring, Insurance, Litigation, Herbert Smith Freehills LLP, Class action, Investment management, Lehman Brothers
    Authors:
    Andrew Rich
    Location:
    Australia
    Firm:
    Herbert Smith Freehills LLP
    UK Supreme Court refuses to enforce US judgment made in insolvency proceedings against English resident defendants
    2012-11-01

    In Rubin v Eurofinance SA [2012] UKSC 46, the Supreme Court (by a majority of 4 to 1) reversed the Court of Appeal’s unanimous decision and held that the English court would not enforce a judgment made by the New York court in insolvency proceedings to which the defendant did not submit.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Common law, Court of Appeal of England & Wales, UK Supreme Court
    Authors:
    John Whiteoak , Andrew Cooke
    Location:
    United Kingdom, USA
    Firm:
    Herbert Smith Freehills LLP
    FSD determination affecting Lehman Brothers scheme
    2010-09-30

    On 17 September, the Pension Regulator's Determinations Panel announced that it had issued a determination that six companies within the Lehman Brothers group (including the group's main operating companies in the UK as well as the US parent Lehman Brothers Holding Inc.) should provide financial support to the Lehman Brothers Pension Scheme. This followed a hearing on 8-9 September 2010.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Joint and several liability, Defined benefit pension plan, Subsidiary, Pensions Act 2004 (UK), Lehman Brothers
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Application to pre-pack administrations
    2009-11-02

    In August we reported that the Court of Appeal had expressed doubts as to whether the EAT in Oakland v Wellswood was right to suggest that pre-pack administrations could be insolvencies "begun with a view to liquidation" (so that TUPE does not apply to transfer employees).

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK)
    Authors:
    Andrew Brown , Anna Henderson , Peter Frost , Andrew Taggart , Tim Leaver , Jemima Coleman
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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