The recent Federal Court of Australia (Court) decision in CBA Corporate Services (NSW) Pty Ltd, in the matter of ZYX Learning Centres Ltd (receivers and managers appointed) (in liq) v Walker [2013] FCA 243 confirms that liquidators owe a heavy duty of disclosure to the court and that the materiality of facts to be disclosed is to be assessed on a case by case basis.

The recent Supreme Court of New South Wales decision in Re V & M Davidovic Pty Limited [2012] NSWSC 1598 clarifies where the directors of a company in receivership will be authorised to defend a winding up application and confirms that Courts will be reluctant to adjourn such applications in order to allow the directors to gather evidence of solvency.

The Facts

The recent New South Wales Supreme Court (Court) decision in In re MF Global Australia Ltd (in liq) No 2 [2012] NSWSC 1426 (23 November 2012) confirms that liquidators who properly incur costs and expenses in seeking court directions regarding the distribution of trust property and, in recovering such property, will generally be able to recover their relevant remuneration, costs and expenses from that trust property.

The recent decision of the Federal Court in Carter in the matter of Damilock Pty Ltd (Damilock) highlights the need for liquidators to review current practices when paying priority creditors (e.g. employee entitlements).

Facts

The plaintiffs were appointed as administrators of Damilock on 26 June 2007 and subsequently appointed as liquidators by creditors’ resolution at a meeting on 7 September 2007.

In the recent decision of Oswal v Burrup Fertilisers Pty Limited (Receivers and Managers Appointed) [2013] FCAFC 9, the Full Court of the Federal Court of Australia recently confirmed that receivers and managers will be justified in refusing to allow a director access to books and records of the company where access may adversely impact on the realisation of the secured assets.

THE FACTS

Introduction

On 29 January 2013, the Federal Court of Australia made orders approving the creditors’ scheme of arrangement between Nine Entertainment Group Pty Limited (NEG) and its senior and mezzanine lenders (Nine Scheme).

The Nine Scheme, made under Part 5.1 of the Corporations Act, follows Alinta and Centro as the third debt for equity restructuring of a major Australian company in as many years.

The Federal Court in Lucas, in the matter of Queensland Maintenance Services Pty Ltd (in liq) (Receivers and Managers appointed [2012] FCA 1451, has held that voluntary liquidators (previously administrators) applying to wind the company up in insolvency and be appointed as liquidators did not create ‘cause’ for disqualifying them from appointment by their dealings with the Australian Taxation Office (ATO), the largest creditor of the company.  

With respect to the dynamic course of events regarding COVID-19 – commonly known as the coronavirus – we address the threat of insolvency and related liability of the statutory bodies (Directors) and provide a list of practical mitigating steps

The Federal Court of Australia in KASH Aboriginal Corporation ICN 108 (Administrators Appointed) No 2, held that, in certain circumstances, administrators may be granted protection from personal liability for debts incurred as part of the administration of a corporation.

The Act on the confirmation of private plans (Wet homologatie onderhands akkoord or WHOA) was submitted to the Dutch parliament last year and, once adopted, introduces a framework under which tailor-made (financial) restructuring plans can be implemented outside formal insolvency proceedings.

The WHOA combines elements of the English Scheme of Arrangements, US Chapter 11 and the EU Restructuring Directive (EU 2019/1023).

The following is an overview of the WHOA's most important features.

The procedure