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    Preferred or not preferred - the super preferent status of a business rescue practitioner in subsequent liquidation proceedings
    2018-05-23

    The Supreme Court of Appeal provided clarity in Diener N.O. v Minister of Justice & Others (926/2016) regarding the ranking of the business rescue practitioner’s (BRP) claim for remuneration and expenses. The SCA also clarified whether such claim was conferred a “super preference” over all creditors, secured and unsecured in subsequent liquidation proceedings.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, Liquidation, Unsecured creditor, Companies Act
    Authors:
    Tiffany Jegels , Corné Lewis
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    STX Offshore court rehabilitation
    2016-06-01

    On 27 May 2016, South Korea's STX Offshore & Shipbuilding Co. ("STX OS"), once the country's fourth-largest shipbuilding firm by revenue, filed for court-supervised rehabilitation, in the Seoul Central District Court.

    Filed under:
    South Korea, Insolvency & Restructuring, Litigation, Clyde & Co LLP, Debt, Unsecured creditor, Court of Appeal of Singapore
    Authors:
    Prakash Pillai , Junxiang Koh
    Location:
    South Korea
    Firm:
    Clyde & Co LLP
    Beware of the constructive trust
    2015-03-24

    The existence of trusts that may be connected to a borrower’s assets can be a lending hazard. They do not appear on PPSA search print-outs and, in many cases, they are not shown on a borrower’s financial statements and cannot be searched through traditional due diligence methods.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor, Unjust enrichment, Unsecured creditor, Constructive trust
    Authors:
    Richard C. Dusome
    Location:
    Canada
    Firm:
    Gowling WLG
    Ontario: declaration that security constituted improper preference upheld on appeal
    2013-03-28

    In an earlier edition of Fully Secured (June 27, 2012 – Volume 3, Number 2), we reported on the Ontario Court of Justice decision in Snoek 7 where security granted by a borrower (“HSLP”) to a group of individual creditors (“B”) was held to constitute an improper preference and declared invalid following a challenge by the trustee in bankruptcy. B had been one victim of a Ponzi scheme involving numerous unsecured creditors of HSLP.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor, Debt, Default (finance), Unsecured creditor, Court of Appeal for Ontario
    Authors:
    Richard C. Dusome
    Location:
    Canada
    Firm:
    Gowling WLG
    The importance of documenting shareholder loans (Ontario)
    2012-12-19

    Shareholders often overlook the need to properly document loan advances in their haste to provide funds to the company, without being aware of the significant consequences that can result.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Shareholder, Interest, Unsecured creditor
    Authors:
    Sean Morrison
    Location:
    Canada
    Firm:
    Gowling WLG
    BCCA sets guidelines for bankruptcy appeals
    2012-11-27

    The British Columbia Court of Appeal has sent a clear message that it is necessary to file as well as serve a notice of appeal in bankruptcy matters within the prescribed 30-day time limit. The recent decision of Friedland (Re), 2012 BCCA 381, establishes a crucial practice point for insolvency practitioners.

    Filed under:
    Canada, British Columbia, Insolvency & Restructuring, Litigation, Bull Housser & Tupper LLP, Bankruptcy, Secured creditor, Unsecured creditor
    Location:
    Canada
    Firm:
    Bull Housser & Tupper LLP
    Ontario Commercial Court rules proceeds of bia preference action subject to rights of secured creditors
    2011-08-25

    On August 18, 2011, Mr. Justice Morawetz, of the Ontario Superior Court of Justice, released an important decision in regard to preference actions in the matter of Tucker v. Aero Inventory (UK) Limited (together with Aero Inventory plc, Aero).

    Background

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Bankruptcy, Unsecured debt, Personal property, Legal burden of proof, Secured creditor, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, High Court of Justice (England & Wales), Ontario Superior Court of Justice
    Authors:
    Kevin J. Morley
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Sally Creek: a question of integrity or liability for trustees in bankruptcy
    2011-03-02

    The 2010 decision of the Ontario Court of Appeal in Murphy v. Sally Creek Environs Corp. (Trustee of) considered the role of a trustee in bankruptcy as an officer of the court and its obligation to act fairly and with integrity throughout bankruptcy proceedings.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Bankruptcy, Misconduct, Solicitor, Attorney's fee, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Claiming legal costs in an insolvency proceeding
    2011-03-14

    Recovery of legal costs in insolvency proceedings can be a difficult procedure, as the ability of counsel to claim costs depends on the work performed, the timing of the work, and for whom the work was done.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Costs in English law, Debtor, Ex parte, Court costs, Attorney's fee, Unsecured creditor, Trustee
    Location:
    Canada
    Firm:
    Dentons
    Government loses its priority to GST in CCAA proceedings
    2010-12-22

    In the recent decision of Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, the Supreme Court of Canada has, for the first time, interpreted key provisions of the Companies’ Creditors Arrangement Act (“CCAA”).

    The judgment of the Court, which was pronounced December 16, 2010, overrules appellate authority from Ontario and British Columbia that previously conferred a priority for unremitted GST on the Crown in CCAA proceedings, and endorses the broad discretionary power of a CCAA court.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Dentons, Bankruptcy, Debtor, Excise, Good faith, Due diligence, Remand (court procedure), Secured creditor, Unsecured creditor, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada
    Authors:
    Owen J. James , Matthew Curtis
    Location:
    Canada
    Firm:
    Dentons

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