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    Ignorance is bliss? Not for directors!
    2021-05-14

    In the recent case of TMG Brokers Ltd (In Liquidation) (also known as: Baker v Staines) the High Court held a director of a company to be jointly and severally liable for payments made by his co-director out of the company’s bank account which were made without proper authority and amounted to disguised distributions of capital. The fact that he had placed trust in the other director for the company's financial affairs did not excuse him from performing his duties.

    Background

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Kingsley Napley
    Authors:
    Katie Allard
    Location:
    United Kingdom
    Firm:
    Kingsley Napley
    Restructuring and insolvency - Court decision on how restructuring plans can be used
    2021-05-14

    In what is likely to be the most significant change to the UK restructuring and insolvency market since the Enterprise Act 2002, the Court has paved the way for restructuring plans (RPs) under Part 26A to the Companies Act 2006 to be used to compromise the rights of landlords, financial creditors and other unsecured creditors provided the company shows that those creditors are “out of the money”.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Coronavirus
    Authors:
    Sarah Hawes , Alex Kay , Greg Mulley
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    The Death of the Peak Indebtedness Rule
    2021-05-14

    Despite ruling in favour of the peak indebtedness rule’s existence only 12 months prior, on Monday, the Federal Court reversed its decision in Badenoch Integrated Logging Pty Ltd to revoke the rule’s operation in Australia.

    Background

    The liquidators of Gunns, a major forestry enterprise, commenced proceedings for an unfair preference claim under section 588FA of the Corporations Act 2001 (Cth) against Badenoch Integrated Logging Pty Ltd, a haulage and timber harvesting contractor.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Mills Oakley, Corporations Act 2001 (Australia), Federal Court of Australia
    Authors:
    Samuel Barber
    Location:
    Australia
    Firm:
    Mills Oakley
    FCRA Claim Survives Dismissal Where Plaintiff Alleges Defendant Did Not Have a Permissible Purpose to Access Plaintiff’s Credit Report Based on Prior Discharge of Mortgage Debt in Bankruptcy
    2021-05-14

    The Northern District of Illinois recently denied a motion to dismiss a FCRA claim finding that the complaint sufficiently alleged that the defendant did not have a “permissible purpose” to access the plaintiff’s credit report for collection of a mortgage debt that the plaintiff alleged was previously discharged in bankruptcy. In Andrea Billups v. PHH Mortgage Corporation, No. 19 C 7873, 2021 WL 1648114 (N.D. Ill. Apr. 27, 2021), the plaintiff alleged that the Defendant mortgage server violated 15 U.S.C.

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Womble Bond Dickinson (US) LLP
    Location:
    USA
    Firm:
    Womble Bond Dickinson (US) LLP
    A Word of Counsel 1st Edition 2021 (12th Issue)
    2021-05-13

    NEWSLETTER A WORD OF COUNSEL 1st Edition 2021 (12th Issue) ww.dvc.hk IN THIS ISSUE Who was appointed to act as a provisional liquidator for UA Cinemas? PAGE 54 Who from DVC appeared in this year's inaugural edition of the Legal 500 (2020-2021) Hong Kong Edition? PAGE 56 What are the limits to the Irregularity Principle and what remedies are available to an aggrieved Director? PAGE 33 Why is reform needed in HK's mental health arena?

    Filed under:
    Hong Kong, Arbitration & ADR, Company & Commercial, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Coronavirus
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers
    Rights, Default, No-Action?: REXLot Holdings Ltd. [2020] HKCFI 2212
    2021-05-13

    Background

    Bonds that are traded via clearing houses, such as Euroclear and Clearstream, often contain terms providing that there will be a trustee for the issue, who may be appointed by the participants in the relevant clearing system or by the beneficial owners.

    Quite often, the terms of the bonds will contain so-called “no-action clauses”, pursuant to which the trustee may be accorded certain rights and powers to take action on behalf, and instead, of the beneficial bondholders.

    Filed under:
    Hong Kong, Capital Markets, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Bond (finance), Trustee, Court of First Instance (Hong Kong)
    Authors:
    Yang-Wahn Hew
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers
    Adjournment of winding-up petitions for restructuring - An indulgence not lightly granted
    2021-05-13

    In recent years, it has become increasingly common for companies seeking to avoid an immediate winding-up order, particularly listed companies, to pray in aid of alleged efforts to restructure their debts in a bid to obtain adjournments of a winding-up petition. All too often, these valiant attempts fail: see Re Chase On Development Limited [2020] HKCFI 629, Re SMI Holdings Group Limited [2020] HKCFI 824 and Re REXLot Holdings Ltd [2020] HKCFI 2212 to name a few.

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Court of First Instance (Hong Kong)
    Authors:
    Douglas Lam SC , Jasmine Cheung
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers
    Peak indebtedness gets sin binned
    2021-05-13

    The pavlova, women’s right to vote, the flat white, the Rugby World Cup… New Zealand has a storied history of beating Australia to the punch. However, Aussie liquidators might not be so keen to throw their trans-Tasman cousins a friendly ‘chur!’ as their ability to pursue unfair preference claims continues to be eroded following the recent Full Court decision in Badenoch.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Cornwalls, Good faith, Corporations Act 2001 (Australia), Federal Court of Australia
    Authors:
    Jarrod Munro , Xavier Murphy
    Location:
    Australia
    Firm:
    Cornwalls
    Landmark Recalibration of Hong Kong’s Winding-up Jurisdiction over Foreign Companies: Re China Huiyuan Juice Group Limited
    2021-05-13

    In the landmark case of Re China Huiyuan Juice Group Limited [2020] HKCFI 2940, Mr Justice Harris recalibrated the Hong Kong winding-up jurisdiction and its application to an offshore incorporated, Hong Kong-listed entity.

    In particular, the decision explains why the Hong Kong court may be unable to wind-up an offshore incorporated, Hong Kong-listed company where all of the company’s operating assets are in the Mainland.

    The Material Facts

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Court of First Instance (Hong Kong)
    Authors:
    Look-Chan Ho
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers
    Multiple Lines of Attack on a Statement of Claim considered in Polyline Development Ltd v Ching Lin Chun and Others [2021] HKCFI 483
    2021-05-13

    In the recent decision of Polyline Development Ltd v Ching Lin Chun and Others [2021] HKCFI 483, Mr Recorder Manzoni SC struck out the Plaintiff’s statement of claim and action on a number of grounds. At para. 9 of the judgment, the learned Recorder highlighted the length of the submissions and evidence put forward by the parties, before remarking that “it may be thought that if such voluminous material is necessary in order to persuade the court that the claim is obviously unsustainable, the application is somewhat ambitious”

    Filed under:
    Hong Kong, Insolvency & Restructuring, Litigation, Des Voeux Chambers, Court of First Instance (Hong Kong)
    Authors:
    Michael Lok
    Location:
    Hong Kong
    Firm:
    Des Voeux Chambers

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