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    NSW's shift on personal liability for corporate fault good news for insolvency practitioners
    2012-08-16

    The proposed scaling back of directors' liability provisions is good news for insolvency practitioners.

    In good news for insolvency practitioners, the NSW Government formally adopted the Council of Australian Governments guidelines on "Personal Liability for Corporate Fault" as NSW policy on 31 July 2012 .

    What are the "Personal Liability for Corporate Fault" guidelines?

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Clayton Utz, Liquidator (law), Prima facie, Council of Australian Governments, Corporations Act 2001 (Australia)
    Location:
    Australia
    Firm:
    Clayton Utz
    Insolvent managed investment schemes: uncertainty and conflicts
    2011-05-30

    Few now remember that Chapter 5C of the Corporations Act can trace its origins to the afternoon of 23 July 1991. For the past year, the unlisted property trust industry had been in meltdown. The value of the assets held by the industry had fallen over 20%. Investors were scrambling to get out, and collapses seemed imminent.

    Filed under:
    Australia, Capital Markets, Insolvency & Restructuring, Clayton Utz, Legal personality, Market liquidity, Debt, Liability (financial accounting), Liquidation, Liquidator (law), Prima facie, Corporations Act 2001 (Australia)
    Authors:
    Jennifer Ball , John Moutsopoulos
    Location:
    Australia
    Firm:
    Clayton Utz
    Plans and schemes of arrangement in the British Virgin Islands
    2011-02-01

    Under the BVI Business Companies Act, 2004 (the “Act”) there are two types of court supervised arrangements.

    Filed under:
    British Virgin Islands, Insolvency & Restructuring, Litigation, Ogier, Share (finance), Security (finance), Liquidator (law), Prima facie, Consolidation (business), Constitutional amendment, Companies Act
    Location:
    British Virgin Islands
    Firm:
    Ogier
    Liquidators’ fees and the setting aside of a winding up order: who pays?
    2011-03-22

    The recent decision in Pacific China Holdings Limited v Grand Pacific Holdings Limited, BVIHCV 2009/389 sets out the view of the BVI Commercial Court as to who, if anyone, should be responsible for the remuneration of liquidators where a liquidation order is set aside on appeal.

    Filed under:
    British Virgin Islands, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Harneys, Costs in English law, Debt, Liquidation, Remand (court procedure), Liquidator (law), Prima facie, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    British Virgin Islands
    Firm:
    Harneys
    Courts give the green light for fraud-based class actions in Canadian insolvency proceedings
    2016-10-20

    Both of Canada’s primary insolvency statutes, the Bankruptcy and Insolvency Act (“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”) provide for an automatic stay of all legal proceedings when an insolvent debtor files for or seeks insolvency protection. The purpose of the stay is to provide breathing space to a debtor attempting to restructure its business so as to avoid “death by a thousand cuts” and also to ensure similarly situated creditors are treated equally.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Baker McKenzie, Bankruptcy, Shareholder, Debtor, Fraud, Class action, Legal burden of proof, Prejudice, Prima facie, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Michael Nowina
    Location:
    Canada
    Firm:
    Baker McKenzie
    Federal Circuit Court considers the prima facie right of a creditor to a sequestration order despite allegations of fraud, malice and incapacity
    2016-02-26

    History

    On 1 May 2014, the Creditor commenced proceedings against the Debtor for a sequestration order against his estate in respect of unpaid legal costs awarded by the Magistrates Court of Western Australia.

    Various preliminary issues protracted the case, including:

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Fraud, Prima facie
    Authors:
    David Abernethy , Kirsty Sutherland , Mark Wilks , Matthew Critchley
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Test for granting leave to sue court-appointed receiver
    2014-02-18

    Introduction
    'Frivolous or vexatious' test
    'Strong prima facie case' test
    Applying the same test for leave
    Receiver's appointment and discharge orders
    Comment

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Shareholder, Vexatious litigation, Prima facie, Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Norm Emblem , Soloman Lam
    Location:
    Canada
    Firm:
    Dentons
    Business Development Bank of Canada v. Pine Tree Resorts Inc. and 1212360 Ontario Limited: a unified test for granting leave to appeal under Section 193(e) of the BIA
    2013-05-23

    On April 2, 2013, Justice Mesbur of the Ontario Superior Court of Justice (Commercial List) granted an application brought by Business Development Bank of Canada (“BDC”) for the appointment of a receiver over the assets, undertakings and properties of Pine Tree Resort Inc. and 1212360 Ontario Limited, operating as the Delawana Inn in Honey Harbour, Ontario (together, “Delawana”).

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Prima facie, Bank of Canada
    Authors:
    Ian Aversa
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    BIA and CCAA "lookback periods" for preferential transactions
    2012-02-10

    Lenders should be cognizant that the granting of security by a debtor may be subject to challenge as a fraudulent preference in the event the debtor subsequently files for liquidation or proposal proceedings under the Bankruptcy and Insolvency Act (Canada) (the “BIA”) or restructuring proceedings under the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”). Such risk arises if the debtor is insolvent the time the security was granted.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Debtor, Legal burden of proof, Prima facie, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Richard Borins , Andrea Lockhart
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Section 38 claims
    2011-03-14

    Section 38 provides a mechanism by which a creditor can take the place of the trustee in any proceeding where the trustee refuses or fails to act. Essentially, the creditor stands in the place of the trustee and, if successful in the proceeding, is entitled to keep all proceeds, except those that exceed the total of the creditor’s claim and the creditor’s costs of the proceeding. Any surplus proceeds received by the creditor are the property of the bankrupt’s estate.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Costs in English law, Debtor, Interest, Prima facie, Trustee
    Location:
    Canada
    Firm:
    Dentons

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