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    High Court finds lenders not entitled to rely on certificates of independent advice
    2022-05-20

    This week's TGIF considers Stubbings v Jams 2 Pty Ltd [2022] HCA 6, in which the High Court overturned a finding by the Victorian Court of Appeal and confirmed that certificates of independent advice will not always protect lenders from an unconscionability claim.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Unconscionability, High Court of Australia
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    High Court weighs in on unconscionability and personal guarantees in non-bank lending
    2022-03-18

    The High Court has handed down the long-awaited decision of Stubbings v Jams 2 Pty Ltd [2022] HCA 6, unanimously overturning the decision of the Victorian Court of Appeal. In so doing, the Court held that enforcement of rights under a personal guarantee was unconscionable.

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Ironbridge Legal, Unconscionability, Personal guarantee, High Court of Australia
    Authors:
    Trevor Withane
    Location:
    Australia
    Firm:
    Ironbridge Legal
    Government code review response imminent
    2009-08-25

    If Departmental activity, debate in Parliament and media articles are an indication, the Federal Government’s much awaited response to the Ripoll Report is imminent.  

    Filed under:
    Australia, Franchising, Insolvency & Restructuring, Norton Rose Fulbright, Good faith, Unconscionability
    Authors:
    Stephen Giles
    Location:
    Australia
    Firm:
    Norton Rose Fulbright
    Payments made by mistake and the defence of change of position
    2014-05-19

    The High Court has confirmed that where it is claimed that a payment was made by mistake the defence of change of position will still apply where it would be inequitable to order the return of the payment because of a change in circumstances of the payee.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Thomson Geer, Unconscionability
    Authors:
    Neil Hannan
    Location:
    Australia
    Firm:
    Thomson Geer
    Account receivable defined
    2011-10-04

    Burns & Agnew v Commissioner of the Inland Revenue and Strategic Finance Limited (in rec) concerned a dispute between a secured creditor and the IRD (as a preferential creditor) in respect of certain funds received by the liquidators of Takapuna Procurement Limited (TPL).  The liquidators applied to the High Court for directions as to the application of those funds and this required the Court to undertake an analysis of the concept of an "account receivable" for the purposes of determining whether such funds could be applied to satisfy preferential claims under the Seventh

    Filed under:
    New Zealand, Insolvency & Restructuring, Litigation, Buddle Findlay, Credit (finance), Security (finance), Accounts receivable, Debt, Personal property, Liquidation, Unconscionability, Secured creditor, Liquidator (law), Securities Act 1933 (USA)
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Settlement agreements: steps to protect enforceability
    2012-09-27

    On March 3, 2012, the Ontario Superior Court of Justice released its decision in Dodd v. Prime Restaurants of Canada Inc. (2012 ONSC 1578). The decision acts as a caution to franchisors to ensure their franchisees are fully informed and properly advised prior to entering into settlement agreements. Without such steps, franchisors may find releases rendered ineffective against subsequent statutory claims by the application of section 11 of the Arthur Wishart Act (the Act).

    Background

    Filed under:
    Canada, Ontario, Franchising, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Breach of contract, Negligence, Franchise agreement, Unconscionability, Ontario Superior Court of Justice
    Authors:
    Lia Bruschetta
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Loans to wife for husband's purposes not subject to the CCCFA
    2016-12-13

    Mr Maharaj owned a building company. Ms Nandani, his wife, owns a residential property. Mr Maharaj needed funding, which he could not obtain. However, the necessary funds were loaned to Ms Nandani and secured over her property. Ms Nandani subsequently contended that:

    Filed under:
    New Zealand, Banking, Insolvency & Restructuring, Litigation, Real Estate, Buddle Findlay, Debt, Unconscionability, Undue influence
    Authors:
    Bridie McKinnon , Susan Rowe , David Perry , Jan Etwell , Scott Abel , Peter Niven , Scott Barker , Kelly Paterson , Myles O'Brien , Willie Palmer
    Location:
    New Zealand
    Firm:
    Buddle Findlay
    Balancing Act: Supreme Court Rules That Filing a Proof of Claim for Stale Debt Does Not Violate the Fair Debt Collection Practices Act
    2017-05-24

    The U.S. Supreme Court has held that the filing of a proof of claim in bankruptcy proceedings with respect to time-barred debt is not a “false, deceptive, misleading, unfair, or unconscionable” act within the meaning of the Fair Debt Collection Practices Act (“FDCPA”) when there continues to be a right to repayment after the expiration of the limitations period under applicable state law. The Court’s decision in Midland Funding, LLC v.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, K&L Gates LLP, Bankruptcy, Debt, Unconscionability, Title 11 of the US Code, Fair Debt Collection Practices Act 1977 (USA), Supreme Court of the United States, United States bankruptcy court
    Authors:
    Phoebe S. Winder , Andrew C. Glass , Gregory N. Blase , Sean R. Higgins , David A. Mawhinney , Theresa A. Roozen , Brandon R. Dillman
    Location:
    USA
    Firm:
    K&L Gates LLP
    Balancing Act: Supreme Court Rules That Filing a Proof of Claim for Stale Debt Does Not Violate the Fair Debt Collection Practices Act
    2017-05-24

    The U.S. Supreme Court has held that the filing of a proof of claim in bankruptcy proceedings with respect to time-barred debt is not a “false, deceptive, misleading, unfair, or unconscionable” act within the meaning of the Fair Debt Collection Practices Act (“FDCPA”) when there continues to be a right to repayment after the expiration of the limitations period under applicable state law. The Court’s decision in Midland Funding, LLC v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, K&L Gates LLP, Bankruptcy, Debt, Unconscionability, Title 11 of the US Code, Fair Debt Collection Practices Act 1977 (USA), Supreme Court of the United States, United States bankruptcy court
    Authors:
    Phoebe S. Winder , Andrew C. Glass , Gregory N. Blase , Sean R. Higgins , David A. Mawhinney , Theresa A. Roozen , Brandon R. Dillman
    Location:
    USA
    Firm:
    K&L Gates LLP
    In Win for Debt Buyers, Supreme Court Holds Filing Proofs of Claim in Bankruptcy on Stale Debts Does Not Violate FDCPA
    2017-05-16

    In Midland Funding, LLC v. Johnson, the U.S. Supreme Court held that a debt collector does not run afoul of the FDCPA by filing a proof of claim in bankruptcy on a stale debt.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Bankruptcy, Statute of limitations, Debt, Dissenting opinion, Collection agency, Unconscionability, Right to a fair trial, Title 11 of the US Code, Fair Debt Collection Practices Act 1977 (USA), Supreme Court of the United States, Eleventh Circuit
    Authors:
    Alan D. Leeth , Rachel R. Friedman
    Location:
    USA
    Firm:
    Burr & Forman LLP

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