A mortgagee may be faced with a situation where the mortgagor becomes bankrupt and the trustee, in which the property then vests, disclaims the mortgaged property. By force of a trustee’s disclaimer, the bankrupt’s fee simple estate escheats to the Crown in the right of the State. When the Registrar of Titles receives a notice of disclaimer from a trustee, a Registrar’s caveat will be recorded over the property.
The interplay between an arbitration clause and a creditor’s winding up petition is a vexed question which has given rise to a string of cases, including Lasmos Ltd v Southwest Pacific Bauxite (HK) Ltd [2018] 2 HKLRD 449, Re Asia Master Logistics Ltd [2020] 2 HKLRD 423 and But Ka Chon v Interactive Brokers LLC [2019] 4 HKLRD 873.
The case of Triple Point Technology Inc (Triple Point) v PTT Public Company Ltd (PTT) [2021] UKSC 29 has prompted considerable discussion in the construction industry.
In the case of In re Walker, 473 Md. 68 (2021), the Court of Appeals responded to a certified question of law by the U.S. Bankruptcy Court for the District of Maryland (Bankruptcy Court) by stating that a lien under the Maryland Contract Lien Act (MCLA) cannot secure damages, costs of collection, late charges, and attorney's fees that accrue subsequent to the recordation of the lien.
In the recent case of Re Hydrodec Group Plc [2021] NSWSC 755 (Hydrodec) the Supreme Court of New South Wales (NSW Supreme Court or Court) rejected an application by a non-operating holding company, Hydrodec Group Plc (the Company), for recognition of its United Kingdom (UK) debtor-in-possession Part A1 moratorium process (Part A1 Moratorium) and relief from a winding up application being made against the Company in Australia.
In In re KarcreditLLC [1], the U.S. Bankruptcy Court for the Western District of Louisiana was faced with two lenders with claims to one original stock certificate as collateral.
The Bankruptcy Code grants the power to avoid certain transactions to a bankruptcy trustee or debtor-in-possession. See, e.g., 11 U.S.C. §§ 544, 547–48. Is there a general requirement that these avoidance powers only be used when doing so would benefit creditors? In a recent decision, the United States Bankruptcy Court for the District of New Mexico addressed this question, concluding, in the face of a split of authority, that there was such a requirement.
The Insolvency & Bankruptcy Code, 2017 (‘Code’) was,inter alia, enacted for the resolution or liquidation of companies defaulting on their debts. These debts may include claims subject to an arbitration or sums determined in the form of an award. In the present article, we identify some potential scenarios where parties to an arbitration agreement must be conscious of the interplay between arbitration and the Code.
1.Initiating Insolvency Proceedings for contractual defaults
In 2016, the Insolvency and Bankruptcy Code (“IBC”) was enacted with the objective to bring the insolvency law in India under a single unified umbrella and to ensure speedy resolution of an entity (“Corporate Debtor”) which has defaulted in payment to its creditors (including the statutory authorities). Under the IBC, the Corporate Debtor is required to undergo a Corporate Insolvency Resolution Process (“CIRP”).
In the recent litigation involving Henclo Investments Pty Ltd (Henclo), the NSW Supreme Court confirmed that non-payment of a debt cannot be relied upon as evidence of insolvency if a winding-up application is filed on grounds other than failure to comply with a creditor’s statutory demand.
Background