The end of the mining boom and subdued economic growth in Australia has seen an upturn in contentious work in the insolvency and restructuring area. In addition to litigation aimed at maximising returns for secured creditors, there has been an increase in the number of corporate investigations for troubled entities. White collar crime matters are also becoming a common feature of matters in the insolvency space.
Our cross-practice insolvency and restructuring team has earned a strong reputation for providing comprehensive and commercial advice when solving problems that arise when dealing with, or operating, financially troubled companies. Early and decisive intervention and strategic thinking is critical when dealing with potential insolvency matters and maximising results for our clients, which include creditors, debtors, insolvency practitioners, shareholders and company directors.
We are expert in utilising the full range of restructuring options in order to deliver positive outcomes where possible. We are equally capable in circumstances involving creditor enforcement action and associated commercial litigation.
Our highly awarded practitioners combine first class international and Australian experience with the ability to work seamlessly across all aspects of a transaction. This thorough approach to dealing with distressed businesses allows us to fully address the wide range of issues that develop when restructuring troubled companies and protecting our clients’ interests.
Corrs has acted for several insolvency practitioners in their successful defences of claims made by borrowers and guarantors for breach of duty in the conduct of post GFC receiverships.
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When Allco Finance Group collapsed under the weight of more than $1 billion of debt, its financiers and receivers faced the challenge of restructuring, refinancing and enforcing against a group comprising more than 850 companies. It was also critical to keep the company’s assets available for sale.
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Corrs acted for Luxembourg based BGP Investments in its €20 million NSW Supreme Court claim against Babcock & Brown International regarding a series of significant intercompany transactions involving entities in Australia, Malta and Luxembourg.
When Centro Properties collapsed, the restructuring had to be innovative to cover more than 600 shopping centres in the US and Australia and stakeholders with significantly divergent interests. The solution, a conversion of more than $1 billion in debt into a ‘hybrid instrument’, set a precedent as an alternative to allowing a company to fall into insolvency.
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Corrs is advising The Trust Company, a wholly-owned subsidiary of Perpetual Limited, an Australian investment and trustee group, in defence of a class action brought by over 3000 investors in Australian Capital Reserve as a result of the losses suffered when that company was placed into voluntary administration.
Corrs is acting for the administrators of the Bandanna Energy Ltd group of companies, which comprises 19 companies. Bandanna was seeking to build a coal mine through which it would supply coal to the Wiggins Island Coal Export Terminal in Gladstone, Queensland, under a take-or-pay agreement.
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Corrs has acted for Suncorp Bank and other lenders in multiple NSW Supreme Court and Queensland Supreme Court claims against property valuers. The cases concern valuations prepared by independent property valuers which grossly overstated the true value of development sites over which the lender took security.
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Corrs acted for ABN Amro Clearing in Victorian Supreme Court and Court of Appeal proceedings brought by the receivers of Primebroker Securities Limited following that company’s collapse during the GFC.
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Corrs is acting for the receivers and managers of Midwest Vanadium Pty Ltd, and its immediate parent, Atlantic Vanadium Holdings Pty Ltd. Midwest is a vanadium producer which has over AU$500 million of outstanding debt (including US$335 million of 11.5 per cent Senior Secured Notes due 2018).
MoreThis week’s TGIF takes a look at a recent case in the Supreme Court of Victoria, where the court found the statutory presumption of insolvency did not arise as there had not been effective service of a statutory demand due to a typographical error in
MoreThis week’s TGIF examines a decision of the Victorian Supreme Court which found that several proofs had been wrongly admitted or rejected, and had correct decisions been made, the company would not have been put into liquidation.
MoreThis week’s TGIF considers the decision in RHG Mortgage Corporation Ltd v Summerfield [2019] NSWCA 44, where a finding was made that there was no default by borrowers which entitled the lender to possession of the security property.
MoreThis week’s TGIF considers a recent decision of the Victorian Court of Appeal where a company’s creditors successfully opposed an application by the company’s liquidators to compromise proceedings commenced on the company’s behalf.
MoreIn the recent decision of In the matter of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation) [2019] NSWSC 47, Black J ordered costs against a number of defendants on a preliminary question of insolvency even though they did
MoreThis week’s TGIF covers the Federal Court’s refusal in Lock, in the matter of Cedenco JV Australia Pty Ltd (in liq) (No 2) [2019] FCA 93 to validate creditors’ resolutions fixing $5m+ of remuneration where creditors were given insufficient informatio
MoreThis week’s TGIF considers Re Legend International Holdings Inc (In liq) [2018] VSC 789, the next chapter in the story of Legend International Holdings Inc, where the Court found a company to be insolvent on the basis of a foreign debt.
MoreThis week’s TGIF considers a recent Federal Court decision which validated dispositions of property made by a company after the winding up began.
MoreThis week’s TGIF considers a recent decision of the NSW Supreme Court where the Court protected the priority of an ADI’s unregistered security interest perfected by control, over the registered security interest of a secured creditor.
MoreThis week’s TGIF considers a recent decision of the Federal Court where a special purpose liquidator was appointed to investigate suspected illegal phoenix activity.
MoreThis week’s TGIF considers Re Broens Pty Limited (in liq) [2018] NSWSC 1747, in which a liquidator was held to be justified in making distributions to creditors in spite of several claims by employees for long service leave entitlements.
MoreThis week’s TGIF considers Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316, where the Court held that a release for breach of trust was ineffective because the beneficiary was not fully informed about the breach
MoreThis week’s TGIF considers Australian Worldwide Pty Ltd v AW Exports Pty Ltd where the Court awarded security for costs against plaintiff companies in liquidation, despite a litigation funder’s indemnity against adverse costs
MoreThis week’s TGIF considers a successful application for directions by receivers who wished to distribute assets where proceedings by a third party against the companies over which they were appointed.
MoreThis week’s TGIF considers an application for a warrant authorising a liquidator to search for and seize property, books and records of a company in liquidation.
MoreThis week’s TGIF considers the decision of Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633, where the Supreme Court of Victoria considered whether a liquidator was able, as a matter of law, to assign statutory causes
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For contracts entered into after 1 July 2018, the ability of a contract counterparty to rely on so called ‘ipso facto clauses’ triggered by the occurrence of an insolvency event is limited.
MoreThis week’s TGIF article looks at the decision of Hooke v Bux Global Ltd (No 6) [2018] FCA 1545, where Bux Global Ltd (Bux Global) was wound up on just and equitable grounds and the perceived independence of a director-appointed liquidator was questi
MoreThis week’s TGIF considers the decision of Currie, in the Matter of The Country Wellness Group [2018] FCA 1455, where the administrators approached the Court for orders to justify their continuation of inter- company loans and to limit any personal l
MoreThis week’s TGIF considers the decision in Six Bruce Pty Ltd v Jadig Finance Pty Ltd [2018] VSC 552, where the Court granted an injunction to temporarily restrain a mortgagee’s sale despite the mortgagor not making any payment into Court.
MoreThis week’s TGIF considers a NSW Court of Appeal judgment which denied leave to appeal from a decision which dismissed an application to set aside service of an originating process not served “as soon as practicable”.
MoreThis week’s TGIF considers the recent case of Vanguard v Modena [2018] FCA 1461, where the Court ordered a non-party director to pay indemnity costs due to his conduct in opposing winding-up proceedings against his company.
MoreThe WA Court of Appeal has overturned Forge v Hamersley Iron, determining that mutuality under section 553C of the Corporations Act between an insolvent company and its creditors is not destroyed by the granting of a general security interest to the
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Originally published in Vannin Capital’s Funding in Focus, this article considers how maritime salvage principles have been used in Australia and the United Kingdom to ensure insolvency practitioners are paid for costs and expenses properly incurred.
More DownloadThis week’s TGIF considers the decision in Mujkic Family Company Pty Ltd v Clarke & Gee Pty Ltd [2018] TASFC 4, which concerns a rather novel issue – whether a solicitor acting for a shareholder might also owe a duty of care to the company in liquida
MoreThis week’s TGIF considers the decision of Mensink v Parbery [2018] FCAFC 101, in which the former director of Queensland Nickel appealed against the issue of arrest warrants requiring him to attend court for an examination and to answer contempt cha
MoreThis week’s TGIF considers In the matter of ACN 096 281 542 Limited (in Liquidation) (ACN 096 281 542) (formerly Biotempus Limited) [2018] VSC 425, in which the Victorian Supreme Court dismissed a party’s appeal from a liquidators’ rejection of a pro
MoreThis week’s TGIF considers an increasingly common issue – how to conduct enforcement proceedings where a borrower’s loan is part of concluded group proceedings like those in Great Southern and Timbercorp.
MoreHow far do liquidators’ powers to demand documents for public examinations extend? In this week’s TGIF, we consider these questions in the context of the recent case of Re Cathro.
MoreThis week’s TGIF considers Brislane v ASIC, in the matter of Chiswick Universal Pty Ltd (in liq) [2018] FCA 1095, where the Court ordered that a deregistered company be reinstated to recover a valuable interest vested in the Commonwealth.
MoreThis week’s TGIF considers the case of TW McConnell Pty Ltd v SurfStitch Group Ltd (administrators appointed) (No 2) [2018] NSWSC 1149 and the different methods by which transcripts of examinations carried out by ASIC may be obtained, as well as like
MoreThis weeks’ TGIF considers the case of The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884, in which the Court ordered that 16 companies - which had been deregistered for some 25 years - be reinstated.
MoreThis week’s TGIF examines a recent decision of the New South Wales Court of Appeal which considered whether payments made by a third party to an insolvent company’s creditors could be recovered by the liquidator as unfair preferences.
MoreThis week’s TGIF considers In the matter of MJM(WA) Enterprises Pty Ltd (in liq), where the Court approved a liquidator’s remuneration but deferred decisions about trust distributions until after the Re Amerind litigation finishes
MoreThis week’s TGIF considers In the matter of Arrium Limited [2018] NSWSC 747 in which the Court granted creditors access to documents produced in public examinations.
MoreThis week’s TGIF considers the case of Mighty River International Ltd v Hughes, where the High Court upheld the validity of Holding DOCAs.
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A Ministerial declaration has been made providing for a range of contract rights to be excluded from the stay on the exercise of ‘ipso facto’ provisions.
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Commonwealth regulations have been made providing for a range of contracts to be excluded from the stay on the exercise of ‘ipso facto’ provisions.
MoreThis week’s TGIF considers In the matter of Day & Night Online Transport Pty Ltd (liq), in which a director exercised his powers to commence proceedings in the name of the company to set aside a winding up order.
MoreThis week’s TGIF considers some ways insolvency practitioners can make their lives easier by proactively using the courts to resolve uncertainty – such as liquidators seeking appointment as receivers of trust property.
MoreThis week’s TGIF considers a recent decision in the Raine Square development litigation, where the WA Supreme Court considered whether data files from software packages such as ‘Quickbooks’ are admissible as evidence of financial records.
MoreThis week’s TGIF considers QBH Commercial Enterprises Pty Ltd (In liq) v Dalle Projects Pty Ltd & Ors, in which the Court considered whether privilege can be waived by a director of a company in liquidation.
MoreThis week’s TGIF considers Swiss Re International v Simpson [2018] NSWSC 233, where the court found that three former executives of Forge Group had not engaged in misleading or deceptive conduct when trying to address a cash flow crisis.
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This week’s TGIF considers the recent case of Umberto, which involved an application to appoint special purpose liquidators and to obtain the Court’s approval of their funding and legal arrangements.
MoreThis week’s TGIF considers the case of In the matter of Specialist Australian Security Group Pty Ltd (in liq) [2018] VSC 199 in which the Court considered the priority of an administrator’s right to an indemnity out of company property.
MoreThis week’s TGIF considers Gogetta Equipment Funding Pty Ltd v Mark & Liz Pty Ltd [2018] VSC 91, which examined a priority contest between competing equitable interests in property.
MoreThis week’s TGIF considers the case of White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) v Robertson in which administrators sought directions on whether they hold a lien over consignor property to secure an alleged levy
MoreThis week’s TGIF article considers the case of In the matter of Courtenay House Capital Trading Group Pty Limited (in liq) v Courtenay House Pty Limited (in liq) [2018] NSWSC 404, in which investors in a Ponzi scheme unsuccessfully sought to have the
MoreThis week’s TGIF considers James v Australia and New Zealand Banking Group Ltd [2018] NSWCA 41 in which a guarantor unsuccessfully sought to rely on the rule against double satisfaction to reduce his liability to a creditor.
MoreThis week’s TGIF considers the case of In the matter of Bean and Sprout Pty Ltd [2018] NSWSC 351, an application seeking a declaration as to the validity of the appointment of a voluntary administrator.
MoreThis week’s TGIF is the second part of our two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.
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The Victorian Court of Appeal’s recent decision in Re Amerind has a number of broader implications for financiers and advisors in understanding the characterisation of circulating and non-circulating assets.
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The ASX has re-issued Guidance Note 8 to include guidance on the interplay between the recent safe harbour reforms and the continuous disclosure obligations affecting listed companies.
MoreThis week’s TGIF is the first of a two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.
MoreThis week’s TGIF considers the case of Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2018] FCA 155 which concerned contraventions of consumer credit legislation as result of verifying income on pa
MoreThis week’s TGIF considers In the matter of SurfStitch Group Limited [2018] NSWSC 164, where the Court refused to allow administrators to value claims of class action group members at a nominal $1 for voting at the second creditors’ meeting
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As part of the implementation of the Turnbull government’s National Innovation and Science Agenda, a suite of insolvency reform laws have been introduced, aimed at encouraging entrepreneurship rather than punishing corporate failure.
MoreThis week’s TGIF considers the Victorian Court of Appeal’s decision in Blakeley v CGU Insurance Ltd [2017] VSCA 378, which confirms the rights of third parties to seek direct access to proceeds of insurance.
MoreThis week’s TGIF examines an application for approval of voluntary administrators’ and liquidators’ remuneration in circumstances where the appointments were subsequently found to be invalid.
MoreThis week’s TGIF considers the decision of In the matter of Trico Constructions Pty Limited [2017] NSWSC 1831 and the broader question of when creditors should – and should not – issue statutory demands.
MoreThis week’s TGIF considers a priority contest which turned on the construction of section 62 of the PPSA and the reference to a grantor obtaining possession.
MoreThis week’s TGIF considers the decision in the matter of Bias Boating Pty Ltd [2017] NSWSC 1524 which deals with leave to join already named defendants to a “mothership” proceeding after expiration of the limitation period
MoreThis week’s TGIF considers the decision of Simpson & Anor v Tropical Hire Pty Ltd (in liq) [2017] QCA 274 in which the Queensland Court of Appeal considered whether a disposition of property by a company after the commencement of its winding up was v
MoreAustralia’s restructuring landscape has changed in recent weeks on two fronts – one of which arose rather unexpectedly from a Federal Court Decision.
MoreThis week’s TGIF considers Ziziphus Pty Ltd v Pluton Resources Ltd (Receivers and Managers Appointed) (in liq) [2017] WASCA 193, where the Court considered the impartiality and independence of liquidators.
MoreThis week’s TGIF considers In the matter of Ten Network Holdings Limited (subject to a deed of company arrangement) (recs and mgrs apptd) [2017] NSWSC 1529, which held that transferring shares under a DOCA wasn’t unfairly prejudicial to shareholders,
MoreThis week’s TGIF considers the case of Official Assignee in Bankruptcy of the Property of Cooksley, in the matter of Cooksley v Cooksley, in which the Federal Court granted assistance to the High Court of NZ in administering a bankruptcy
MoreThis week’s TGIF article considers the decision of Mensink v Parbery [2017] FCA 1248 and the options available to liquidators when a director fails to appear for examination, and when liquidators are faced with an appeal by a director who is unlikely
MoreThis week’s TGIF examines the determination of an application by a liquidator for directions as to the conduct of further investigations and for those costs and expenses to be paid from the assets of a trust.
MoreThis week’s TGIF considers the case of Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation [2017] FCA 953, where the Federal Court considered whether the claims of ‘non trust’ creditors in a bankruptcy are to be treated differe
MoreThis week’s TGIF considers Bank of Queensland Limited v Banjanin & Ors [2017] QSC 209, where the Court considered a challenge to asset-based loans.
MoreThis TGIF examines the determination of an application by liquidators of the Diploma Group of companies to be appointed as administrators of Diploma company and put a DOCA proposal to creditors.
MoreThis week’s TGIF considers Singh v De Castro [2017] NSWCA 241, where the New South Wales Court of Appeal held that five directors of an insolvent corporate borrower had executed and were bound by personal guarantees.
MoreThis week’s TGIF considers whether, in a voluntary administration, a report to creditors constituted sufficient disclosure and whether the proponent of a DOCA should be allowed to vote as a creditor in favour of that DOCA.
MoreThis week’s TGIF considers the effect of material non-disclosures and breach of parliamentary privilege on the setting aside of examination summonses issued under ss 596B and 597 of the Corporations Act 2001 (Cth).
MoreThis week’s TGIF considers whether a flexible payment arrangement between a subsidiary and its holding company creditor meant the parent suffered no loss on the insolvency of the subsidiary.
MoreThis week’s TGIF considers the decision of Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866 in which the Federal Court considered whether a security interest could be perfected
MoreThe NSW Supreme Court has given a Landlord leave to commence proceedings against a company for rent and make good costs arising after the date of the DOCA.
MoreThis week’s TGIF considers the decision of Mighty River International Ltd v Hughes, in which the WA Court of Appeal held that a ‘Holding DOCA’ was valid. The decision provides comfort to insolvency practitioners who use ‘Holding DOCAs’
MoreThis week’s TGIF considers the decision of EH 2015 Pty Ltd (in liq) v Caratti (No 3) [2017] WASC 210 which concerned the rights of a liquidator to funds paid into court as security by a company which subsequently became insolvent.
MoreThis week’s TGIF considers what the UK decision of Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 means for insolvency practitioners seeking to access potentially privileged documents created by employees of appointee companies.
MoreThis week’s TGIF considers Spiliotopoulos v National Australia Bank Limited [2017] NSWSC 971, where a mortgagee alleged a witness fraudulently attested to his signature on a mortgage and the bank registered the mortgage with notice of fraud.
MoreThis week’s TGIF examines a recent decision of the Supreme Court of New South Wales which considered whether payments made by a third party to a company’s creditors could be recovered as unfair preferences.
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Two recent decisions have contradicted long-standing authority, resulting in both the Commonwealth and the ATO losing priority status.
MoreThis week’s TGIF considers In the matter of Duke Contracting Australia Pty Ltd [2017] NSWSC 767 where the New South Wales Supreme Court considered how a secured creditor seeking an extension to register a PMSI can demonstrate that the extension would
MoreThis week’s TGIF considers Credit Suisse AG, Sydney Branch v Springsure Property Holdings Pty Ltd (in liquidation) (receivers and managers appointed) [2017] QSC 142, in which the court considered whether real property acquired by the guarantor after
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In an insolvency situation, there are risks in relying upon contractual or statutory set-off where a counterparty has granted security to lenders.
MoreThis week’s TGIF considers In re City Pacific Limited in which the NSW Supreme Court considered whether to approve a liquidator entering into a litigation funding agreement under which the funder would receive a premium of at least 50% of any judgmen
MoreThis week’s TGIF considers Alleasing Pty Ltd, in the matter of OneSteel Manufacturing Pty Ltd in which the Court considered the potential prejudice to creditors in extending the time for registration of security interests
MoreThis week’s TGIF considers Bunnings Group Ltd v Hanson Construction Materials Pty Ltd & Anor [2017] WASC 132, where the Court considered whether the order of registration of caveats determined the priority of competing unregistered charges.
MoreThis week’s TGIF considers the recent proposals to crackdown on rogue directors and reduce the burden on FEG to pay unpaid workers.
MoreThis week’s TGIF considers the case of In the matter of Boart Longyear Limited [2017] NSWSC 537 in which the NSW Supreme Court made orders to assist with the restructuring of a group of companies to the ultimate benefit of creditors
MoreThis week’s TGIF considers the recent decision of AMP Bank Limited v Brown and Kavanagh [2017] NSWSC 313, where the court found that unless a limited exception applies, it does not have the power to adjust the liability of a co-guarantor.
MoreThis week’s TGIF considers Linc Energy Ltd (in Liq) v Chief Executive Dept of Environment & Heritage Protection [2017] QSC 53, in which the Queensland Supreme Court directed that the liquidators of Linc Energy were not justified in causing it to fail
MoreThis week’s TGIF considers an objection by directors and related-party creditors to a liquidator retaining solicitors who had previously acted for a substantial creditor in proceedings against the company.
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Do the draft amendments to the Corporations Act go far enough in helping companies seeking restructuring get back on track?
MoreThis week’s TGIF considers In the matter of 4 in 1 Wyoming Pty Ltd & the companies listed in Schedule A to the Originating Process [2017] NSWSC 407, where the New South Wales Supreme Court granted a financier an extension of time to register new and
MoreThis week’s TGIF considers Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208, in which the Court rejected a borrower’s claims that it entered into a loan contract under duress and that the bank prevented its attempted sale
MoreThis week’s TGIF considers a recent Federal Court decision in which relief was sought under section 588FM of the Corporations Act to ensure a security interest perfected after the ‘critical time’ did not automatically vest.
MoreThis week’s TGIF considers the case of In the matter of CNL Transport Pty Ltd (in liq) [2017] NSWSC 291, where the New South Wales Supreme Court terminated a liquidation where the company was solvent and its debts had been paid.
MoreThis week’s TGIF considers Fordyce v Ryan & Anor; Fordyce v Quinn & Anor [2016] QSC 307, where the Court considered whether a beneficiary’s interest in a discretionary trust amounted to ‘property’ for the purposes of the Bankruptcy Act 1966 (Cth).
MoreThis week’s TGIF considers Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, in which the Court questioned whether the knowledge of a company is in fact the collective knowledge of its officers
MoreThis week’s TGIF considers a decision of the Victorian Supreme Court which examined the merits of appointing special purpose liquidators in circumstances where a creditor was only willing to fund investigations if the appointment was made.
MoreThis week’s TGIF considers In the matter of OneSteel Manufacturing Pty Limited (admin appt) [2017] NSWSC 21, where it was held that a PPSR registration was defective as the grantor’s ACN was not included in the registration.
MoreA recent Court of Appeal decision has affirmed that liquidators may claim an equitable lien to recover their costs and expenses, even if no assets are realised and no fund exists.
MoreThis week’s TGIF considers In the matter of ACN 151 726 224 Pty Ltd (in liq) [2016] NSWSC 1801, where the Court dismissed a creditor’s application to remove liquidators who had refused to conduct public examinations of a director.
MoreThis week’s TGIF considers a decision in which ASIC sought significant penalty orders against a listed public company and its director for misleading and deceptive statements in a prospectus, non-disclosure to the ASX and breach of directors duties
MoreThis week’s TGIF considers a NSW Court of Appeal decision which confirms that liquidators who bring a claim for preference payments within the limitation period may amend that claim to capture additional transactions otherwise subject to a statutory
MoreThis week’s TGIF considers Tai-Soo Suk v Hanjin Shopping Co Ltd [2016] FCA 1404 in which the Court was required to determine the scope of a stay arising under the UNCITRAL Model Law on Cross Border Insolvency
MoreThis week’s TGIF considers a recent decision in the Victorian Supreme Court in which a Guarantor was released from liability as a consequence of the Lender’s inappropriate conduct in realising the security.
MoreThis week’s TGIF considers the recent decision of Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305 in which the Court held that privilege attached to an expert report prepared for the purpose of obtaining litigation funding
MoreThis week’s TGIF considers Re Akron Roads Pty Ltd (in liq) (No 3) in which the Court held that the liquidators had standing to seek a declaration against an insurer arising from the assignment of rights under a policy
MoreIn State of Victoria v Goulburn Administration Services (In Liquidation) and Ors [2016] VSC 654, Special Purpose Liquidators were appointed despite a potential conflict arising from their firm having conducted compliance audits.
MoreThis week’s TGIF considers a recent decision in which the Court directed that liquidators would be justified in utilising trust funds to conduct further investigations to identify and pursue potential claims available to a trustee.
MoreThis week’s TGIF considers Wood v Astra Resources Ltd (UK Company No 07620218) [2016] FCA 1192, in which the Federal Court was asked to recognise a foreign proceeding under the Model Law on Cross Border Insolvency.
MoreThis week’s TGIF considers Navarac Pty Ltd v Carrello [2016] WASC 327, in which the court held that a director was entitled to inspect certain records created by a receiver during the course of the receivership.
MoreThe NSW Court of Appeal recently rejected an appeal from a decision which held that a company director was not personally liable as a guarantor in circumstances where his electronic signature had been affixed to the guarantee without his knowledge.
MoreThis week’s TGIF considers the decision of Kimberley Diamonds Ltd, in the matter of Kimberley Diamond Company Pty Ltd (in liq) [2016] FCA 1016 in which the Court refused to allow the mandatory examination of a liquidator under s 596A
MoreThis week’s TGIF looks at the departure from the general costs rule considered in In the matter of Condor Blanco Mines Ltd (No. 2) in circumstances where the administrator was found not to have discharged the duty of essential neutrality.
MoreThis week’s TGIF considers Clive Palmer’s recent challenges to the constitutionality of the Court’s power under the Corporations Act to issue examination summonses.
MoreThis week’s TGIF considers the decision of Ziziphus Pty Ltd v Pluton Resources Limited (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) where the Court favoured the public interest in terminating a DOCA
MoreA recent High Court decision has considered the issue of estoppel based on representations made during commercial negotiations.
MoreThis week’s TGIF considers the case of Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, where the Court exercised its power to “go behind” a judgment upon which a petitioning creditor relied as proof of a debt that was owed.
MoreThis week’s TGIF considers Mizuho Bank Ltd v Ackroyd where the Court considered whether s 440J will prevent the continuation of proceedings to enforce a guarantee against a director of a company in administration
MoreThis week’s TGIF considers a recent case where two individuals challenged their liability under guarantees given by them in respect of monies borrowed by their family trust for property development purposes.
MoreThis week’s TGIF considers CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231 which concerns a mortgagor’s application for an interim injunction to restrain a mortgagee from exercising its power of sale.
MoreThis week’s TGIF considers Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848 which considers setting aside a DOCA and the administrator’s casting vote.
MoreThis week’s TGIF considers the latest in a string of significant decisions on the Code of Banking Practice. The case sends a clear message to bankers: fail to comply with the Code at your peril!
MoreThis week’s TGIF considers Brandon Industries (Vic) Pty Ltd v Locker Pty Ltd where the Court dismissed an application to set aside a statutory demand due to the applicant’s failure to establish a genuine dispute or offsetting claim.
MoreThis week’s TGIF considers Legend International Holdings Inc (In Liquidation) v Indian Farmers Fertiliser Cooperative Ltd & Kisan International Trading FZE [2016] VSCA 151 in which it was held that s 581 does not prohibit a winding up order where Ch
MoreThis week’s TGIF considers the most recent decision in a line of cases which hold that the provisions of the Code of Banking Practice may be incorporated into loan agreements, as well as guarantees given by individuals.
MoreThis week’s TGIF considers In the matter of Blue Sennar Air Pty Ltd (in liq); In the matter of Eye Plantain Pty Ltd (in liq) [2016] NSWSC 772.
MoreThis week’s TGIF considers the Federal Court decision of National Australia Bank Ltd v Garrett [2016] FCA 714 in which the Court stepped in to invalidate and restrain an improper registration on the PPSR
MoreThis week’s TGIF considers Palaniappan v Westpac Banking Corporation [2016] WASCA 72 in which the Court clarified the scope of ‘suspension clauses’ in guarantee agreements.
MoreThis week’s TGIF considers In the matter of Legend International Holdings Inc [2016] VSC 308 in which the Court declined to recognise a US Chapter 11 bankruptcy proceeding and made orders that the company be wound up.
MoreThis week’s TGIF considers the decision of Deputy Commissioner of Taxation v BE100 Property Investments Pty Ltd [2016] FCA 597 where the court found that a deed administrator acted unreasonably by attempting to terminate a deed of company arrangement
MoreThis week’s TGIF considers the decision in Hussain v CSR Building Products Limited, in the matter of FPJ Group Pty Ltd (In Liq), in which an ROT clause was held to be a “security”, defeating the liquidators’ unfair preference claim.
MoreThis week’s TGIF examines the NSW Supreme Court decision In the Matter of Kevin Jacobsen Pty Limited (in liq) [2016] NSWSC 538 which considered a challenge to an application under s 477(2B) to assign a cause of action.
MoreThis week’s TGIF considers the decision of In the matter of THO Services Limited [2016] NSWSC 509 in which the Court exercised its general power to extend the voluntary administration moratorium period to a commercial arbitration.
MoreA recent NSW Court of Appeal decision has considered the validity of the Commissioner of Taxation’s treatment of debits and credits in an insolvency context.
MoreThe proponents of indirect or “market-based” causation in securities actions are vindicated by a decision of the Supreme Court of NSW in Re HIH Insurance Limited (In liquidation) [2016] NSWSC 482
MoreThis week’s TGIF considers In the matter of Banksia Securities Limited (in liquidation) (receivers and managers appointed) [2016] NSWSC 357 in which the Court uses its broad remedial powers to appoint special purpose receivers.
MoreVictorian Supreme Court rules that the appointment of an administrator was invalid, void and of no effect because the directors did not genuinely believe the company was insolvent and appointed the administrator for an improper purpose.
MoreThis week’s TGIF considers the recent decision of the Federal Court which concerned the proper distribution of sale proceeds and whether those proceeds comprised part of the “property of the company”.
MoreThis week’s TGIF considers the decision of Crowe-Maxwell v Frost [2016] NSWCA 46 in which the Court held that a liquidator did not discharge his onus of proving relevant transactions were unreasonable director-related transactions
MoreThis week’s TGIF considers the decision in ANZ v Manasseh [2016] WASCA 41, where the court considered the enforceability of a guarantee when a subsequent credit contract is entered into without the guarantor’s consent.
MoreVictorian Supreme Court confirms that, unless there is an express provision for the benefit of a guarantor, a creditor will not be required to exhaust its remedies against a debtor before having recourse to the guarantee.
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The Turnbull Government’s Innovation Reforms provide for a more flexible approach to restructuring which will assist entrepreneurship and existing businesses battle digital disruption.
MoreThis week’s TGIF considers whether section 556(1) priorities apply to claims against trust assets and in particular the superannuation guarantee charge.
MoreThe Federal Circuit Court of Australia in McNally v Fazio (No. 3) [2016] FCCA 215 considers a petitioning creditor’s prima facie right to a sequestration order despite allegations of fraud, malice and incapacity.
MoreIn CGU Insurance Ltd v Blakeley & Ors, the High Court confirms the ability of certain third party claimants to directly pursue the insurers of insolvent and potentially insolvent insured defendants.
MoreThis week’s TGIF considers the decision of Commonwealth Bank of Australia v Currey in which the Court looks at whether a breach of clause 25.1 of the Code of Banking Practice renders a guarantee void or voidable.
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Hedging agreements are an integral part of many loan transactions but often do not receive the attention they deserve. Here are four key points to bear in mind when drafting and negotiating a hedging agreement.
MoreThis week’s TGIF considers whether banks owe guarantors a duty to exercise the care and skill of a diligent and prudent banker in selecting and applying their credit assessment methods and forming an opinion about a customer’s ability to repay.
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Four lessons to prevent a PPSA disaster happening to you.
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Directors of companies facing financial difficulty must avoid a ‘head in the sand’ mentality.
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Building company insolvencies are rife and state governments must act.
MoreThe spate of insolvencies in the NSW construction sector shows no signs of easing. On 24 October 2013, the Building and Construction Industry Security of Payment Act Amendment Bill 2013 was introduced into Parliament.
MoreOn 19 April 2013, the Federal Court of Australia handed down judgment in Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd granting Eopply leave to enforce a foreign arbitral award made in China against an Australian corporation in liquidation.
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Holders of HIH (NZ) convertible notes have little hope of recovering any of their investment. But it didn’t have to end this way…
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In government-sponsored construction projects, a new direct payment system could mitigate insolvency risk to employers and subcontractors if the head contractor’s business fails.
MoreAn amending bill has been introduced into the New South Wales Parliament which will make significant changes to the corporate reconstruction exemption provisions and introduce a specific anti-avoidance measure into the landholder duty provisions.
MoreCorrs has acted for several insolvency practitioners in their successful defences of claims made by borrowers and guarantors for breach of duty in the conduct of post GFC receiverships.
Corrs succeeded in ensuring that all claims were ultimately dismissed by the Court or entirely withdrawn. Many lawyers profess the skill to advise insolvency practitioners on their duties. Very few have Corrs’ experience in defending actual claims and doing so successfully.
When Allco Finance Group collapsed under the weight of more than $1 billion of debt, its financiers and receivers faced the challenge of restructuring, refinancing and enforcing against a group comprising more than 850 companies. It was also critical to keep the company’s assets available for sale.
Corrs worked with Ferrier Hodgson to achieve this and secure the sale of Allco’s US$3 billion aviation business, the largest and most complex asset within the Allco Group.
The collapse of Allco Finance Group presented an extremely complex task for its financiers and receivers, with restructuring, refinancing and enforcing against a group comprising more than 850 companies, as well as numerous on and off balance sheet tax structures in jurisdictions across the globe.
Corrs worked closely with Allco’s financiers and the Ferrier Hodgson team to retain and manage the existing business and achieve the final sale. Court proceedings were instigated to maintain the assets available for sale by the receivers, and to restructure certain Allco group companies through a complicated deed of company arrangement and associated creditors trust.
The Allco receivership, of which this successful asset sale was just one component, was one of the three largest receiverships in Australia in 2009. The receivership continues today, with several pieces of high value and complex pieces of commercial litigation in which Corrs continues to act.
In 2014, Corrs represented the Allco receivers in their hard fought and successful court proceedings against the Australian Wholesale Property Fund. Corrs succeed in achieving the rescission of various transactions entered into prior to Allco’s collapse. The practical effect of the litigation was to unlock many tens of millions of dollars of additional recovery for Allco’s secured creditors from an otherwise worthless asset. Corrs also represents the Allco receivers in their court proceedings against Dr Gordon Fell in relation to Allco’s acquisition of Rubicon. Those proceedings will be heard by the NSW Supreme Court in 2015.
Corrs acted for Luxembourg based BGP Investments in its €20 million NSW Supreme Court claim against Babcock & Brown International regarding a series of significant intercompany transactions involving entities in Australia, Malta and Luxembourg.
When Centro Properties collapsed, the restructuring had to be innovative to cover more than 600 shopping centres in the US and Australia and stakeholders with significantly divergent interests. The solution, a conversion of more than $1 billion in debt into a ‘hybrid instrument’, set a precedent as an alternative to allowing a company to fall into insolvency.
Corrs’ pivotal role for the US lenders involved bringing together stakeholders to facilitate new money facilities and the splitting of security pools, including three sets of lenders in the US and Australia.
A key task was to re-work documentation to reflect asset realisation and then a stabilisation strategy. The transaction was complicated by the cross-border enforcement and documenting of inter-creditor arrangements under US and Australian law, and by the negotiation of a restructure against the uncertainty of the formal insolvency of trust structures.
Corrs’ role continues today in advising some of the US lenders as the restructure unfolds.
Corrs is advising The Trust Company, a wholly-owned subsidiary of Perpetual Limited, an Australian investment and trustee group, in defence of a class action brought by over 3000 investors in Australian Capital Reserve as a result of the losses suffered when that company was placed into voluntary administration.
Corrs is acting for the administrators of the Bandanna Energy Ltd group of companies, which comprises 19 companies. Bandanna was seeking to build a coal mine through which it would supply coal to the Wiggins Island Coal Export Terminal in Gladstone, Queensland, under a take-or-pay agreement.
Bandanna was not able secure additional funding to continue with the development of the mine and subsequently appointed administrators. Corrs is assisting the administrators deal with numerous complex contracts governing the proposed development.
Corrs has acted for Suncorp Bank and other lenders in multiple NSW Supreme Court and Queensland Supreme Court claims against property valuers. The cases concern valuations prepared by independent property valuers which grossly overstated the true value of development sites over which the lender took security.
The lender relied on the valuations in deciding to make loans of up to $30 million and suffered significant damage when those loans turned sour and the properties were sold at a vast discount to their supposed value.
Corrs acted for ABN Amro Clearing in Victorian Supreme Court and Court of Appeal proceedings brought by the receivers of Primebroker Securities Limited following that company’s collapse during the GFC.
The proceedings involved complex questions regarding the construction and operation of a securities lending agreement in an insolvent situation.
Corrs is acting for the receivers and managers of Midwest Vanadium Pty Ltd, and its immediate parent, Atlantic Vanadium Holdings Pty Ltd. Midwest is a vanadium producer which has over AU$500 million of outstanding debt (including US$335 million of 11.5 per cent Senior Secured Notes due 2018).
As a result of a fire at the plant in February 2014, Midwest was reliant on insurance proceeds in order to rebuild the plant and re-commence production. Notwithstanding the insurance policy, a proposed restructuring with the companies noteholders and other secured lenders did not eventuate, leaving the company little alternative but to enter administration (and subsequently, receivership).
This week’s TGIF takes a look at a recent case in the Supreme Court of Victoria, where the court found the statutory presumption of insolvency did not arise as there had not been effective service of a statutory demand due to a typographical error in
This week’s TGIF examines a decision of the Victorian Supreme Court which found that several proofs had been wrongly admitted or rejected, and had correct decisions been made, the company would not have been put into liquidation.
This week’s TGIF considers the decision in RHG Mortgage Corporation Ltd v Summerfield [2019] NSWCA 44, where a finding was made that there was no default by borrowers which entitled the lender to possession of the security property.
This week’s TGIF considers a recent decision of the Victorian Court of Appeal where a company’s creditors successfully opposed an application by the company’s liquidators to compromise proceedings commenced on the company’s behalf.
In the recent decision of In the matter of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation) [2019] NSWSC 47, Black J ordered costs against a number of defendants on a preliminary question of insolvency even though they did
This week’s TGIF covers the Federal Court’s refusal in Lock, in the matter of Cedenco JV Australia Pty Ltd (in liq) (No 2) [2019] FCA 93 to validate creditors’ resolutions fixing $5m+ of remuneration where creditors were given insufficient informatio
This week’s TGIF considers Re Legend International Holdings Inc (In liq) [2018] VSC 789, the next chapter in the story of Legend International Holdings Inc, where the Court found a company to be insolvent on the basis of a foreign debt.
This week’s TGIF considers a recent Federal Court decision which validated dispositions of property made by a company after the winding up began.
This week’s TGIF considers a recent decision of the NSW Supreme Court where the Court protected the priority of an ADI’s unregistered security interest perfected by control, over the registered security interest of a secured creditor.
This week’s TGIF considers a recent decision of the Federal Court where a special purpose liquidator was appointed to investigate suspected illegal phoenix activity.
This week’s TGIF considers Re Broens Pty Limited (in liq) [2018] NSWSC 1747, in which a liquidator was held to be justified in making distributions to creditors in spite of several claims by employees for long service leave entitlements.
This week’s TGIF considers Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316, where the Court held that a release for breach of trust was ineffective because the beneficiary was not fully informed about the breach
This week’s TGIF considers Australian Worldwide Pty Ltd v AW Exports Pty Ltd where the Court awarded security for costs against plaintiff companies in liquidation, despite a litigation funder’s indemnity against adverse costs
This week’s TGIF considers a successful application for directions by receivers who wished to distribute assets where proceedings by a third party against the companies over which they were appointed.
This week’s TGIF considers an application for a warrant authorising a liquidator to search for and seize property, books and records of a company in liquidation.
This week’s TGIF considers the decision of Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633, where the Supreme Court of Victoria considered whether a liquidator was able, as a matter of law, to assign statutory causes
For contracts entered into after 1 July 2018, the ability of a contract counterparty to rely on so called ‘ipso facto clauses’ triggered by the occurrence of an insolvency event is limited.
This week’s TGIF article looks at the decision of Hooke v Bux Global Ltd (No 6) [2018] FCA 1545, where Bux Global Ltd (Bux Global) was wound up on just and equitable grounds and the perceived independence of a director-appointed liquidator was questi
This week’s TGIF considers the decision of Currie, in the Matter of The Country Wellness Group [2018] FCA 1455, where the administrators approached the Court for orders to justify their continuation of inter- company loans and to limit any personal l
This week’s TGIF considers the decision in Six Bruce Pty Ltd v Jadig Finance Pty Ltd [2018] VSC 552, where the Court granted an injunction to temporarily restrain a mortgagee’s sale despite the mortgagor not making any payment into Court.
This week’s TGIF considers a NSW Court of Appeal judgment which denied leave to appeal from a decision which dismissed an application to set aside service of an originating process not served “as soon as practicable”.
This week’s TGIF considers the recent case of Vanguard v Modena [2018] FCA 1461, where the Court ordered a non-party director to pay indemnity costs due to his conduct in opposing winding-up proceedings against his company.
The WA Court of Appeal has overturned Forge v Hamersley Iron, determining that mutuality under section 553C of the Corporations Act between an insolvent company and its creditors is not destroyed by the granting of a general security interest to the
Originally published in Vannin Capital’s Funding in Focus, this article considers how maritime salvage principles have been used in Australia and the United Kingdom to ensure insolvency practitioners are paid for costs and expenses properly incurred.
This week’s TGIF considers the decision in Mujkic Family Company Pty Ltd v Clarke & Gee Pty Ltd [2018] TASFC 4, which concerns a rather novel issue – whether a solicitor acting for a shareholder might also owe a duty of care to the company in liquida
This week’s TGIF considers the decision of Mensink v Parbery [2018] FCAFC 101, in which the former director of Queensland Nickel appealed against the issue of arrest warrants requiring him to attend court for an examination and to answer contempt cha
This week’s TGIF considers In the matter of ACN 096 281 542 Limited (in Liquidation) (ACN 096 281 542) (formerly Biotempus Limited) [2018] VSC 425, in which the Victorian Supreme Court dismissed a party’s appeal from a liquidators’ rejection of a pro
This week’s TGIF considers an increasingly common issue – how to conduct enforcement proceedings where a borrower’s loan is part of concluded group proceedings like those in Great Southern and Timbercorp.
How far do liquidators’ powers to demand documents for public examinations extend? In this week’s TGIF, we consider these questions in the context of the recent case of Re Cathro.
This week’s TGIF considers Brislane v ASIC, in the matter of Chiswick Universal Pty Ltd (in liq) [2018] FCA 1095, where the Court ordered that a deregistered company be reinstated to recover a valuable interest vested in the Commonwealth.
This week’s TGIF considers the case of TW McConnell Pty Ltd v SurfStitch Group Ltd (administrators appointed) (No 2) [2018] NSWSC 1149 and the different methods by which transcripts of examinations carried out by ASIC may be obtained, as well as like
This weeks’ TGIF considers the case of The Bell Group Limited v Australian Securities and Investments Commission [2018] FCA 884, in which the Court ordered that 16 companies - which had been deregistered for some 25 years - be reinstated.
This week’s TGIF examines a recent decision of the New South Wales Court of Appeal which considered whether payments made by a third party to an insolvent company’s creditors could be recovered by the liquidator as unfair preferences.
This week’s TGIF considers In the matter of MJM(WA) Enterprises Pty Ltd (in liq), where the Court approved a liquidator’s remuneration but deferred decisions about trust distributions until after the Re Amerind litigation finishes
This week’s TGIF considers In the matter of Arrium Limited [2018] NSWSC 747 in which the Court granted creditors access to documents produced in public examinations.
This week’s TGIF considers the case of Mighty River International Ltd v Hughes, where the High Court upheld the validity of Holding DOCAs.
A Ministerial declaration has been made providing for a range of contract rights to be excluded from the stay on the exercise of ‘ipso facto’ provisions.
Commonwealth regulations have been made providing for a range of contracts to be excluded from the stay on the exercise of ‘ipso facto’ provisions.
This week’s TGIF considers In the matter of Day & Night Online Transport Pty Ltd (liq), in which a director exercised his powers to commence proceedings in the name of the company to set aside a winding up order.
This week’s TGIF considers some ways insolvency practitioners can make their lives easier by proactively using the courts to resolve uncertainty – such as liquidators seeking appointment as receivers of trust property.
This week’s TGIF considers a recent decision in the Raine Square development litigation, where the WA Supreme Court considered whether data files from software packages such as ‘Quickbooks’ are admissible as evidence of financial records.
This week’s TGIF considers QBH Commercial Enterprises Pty Ltd (In liq) v Dalle Projects Pty Ltd & Ors, in which the Court considered whether privilege can be waived by a director of a company in liquidation.
This week’s TGIF considers Swiss Re International v Simpson [2018] NSWSC 233, where the court found that three former executives of Forge Group had not engaged in misleading or deceptive conduct when trying to address a cash flow crisis.
To help you get across the wide array of legal and other terms associated with insolvency and restructuring, Corrs has created the A to Z of Insolvency and Restructuring – a handy downloadable index of all the terms you need to understand.
This week’s TGIF considers the recent case of Umberto, which involved an application to appoint special purpose liquidators and to obtain the Court’s approval of their funding and legal arrangements.
This week’s TGIF considers the case of In the matter of Specialist Australian Security Group Pty Ltd (in liq) [2018] VSC 199 in which the Court considered the priority of an administrator’s right to an indemnity out of company property.
This week’s TGIF considers Gogetta Equipment Funding Pty Ltd v Mark & Liz Pty Ltd [2018] VSC 91, which examined a priority contest between competing equitable interests in property.
This week’s TGIF considers the case of White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) v Robertson in which administrators sought directions on whether they hold a lien over consignor property to secure an alleged levy
This week’s TGIF article considers the case of In the matter of Courtenay House Capital Trading Group Pty Limited (in liq) v Courtenay House Pty Limited (in liq) [2018] NSWSC 404, in which investors in a Ponzi scheme unsuccessfully sought to have the
This week’s TGIF considers James v Australia and New Zealand Banking Group Ltd [2018] NSWCA 41 in which a guarantor unsuccessfully sought to rely on the rule against double satisfaction to reduce his liability to a creditor.
This week’s TGIF considers the case of In the matter of Bean and Sprout Pty Ltd [2018] NSWSC 351, an application seeking a declaration as to the validity of the appointment of a voluntary administrator.
This week’s TGIF is the second part of our two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.
The Victorian Court of Appeal’s recent decision in Re Amerind has a number of broader implications for financiers and advisors in understanding the characterisation of circulating and non-circulating assets.
The ASX has re-issued Guidance Note 8 to include guidance on the interplay between the recent safe harbour reforms and the continuous disclosure obligations affecting listed companies.
This week’s TGIF is the first of a two-part series considering Commonwealth v Byrnes [2018] VSCA 41, the Victorian Court of Appeal’s decision on appeal from last year’s Re Amerind decision about the insolvency of corporate trustees.
This week’s TGIF considers the case of Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2018] FCA 155 which concerned contraventions of consumer credit legislation as result of verifying income on pa
This week’s TGIF considers In the matter of SurfStitch Group Limited [2018] NSWSC 164, where the Court refused to allow administrators to value claims of class action group members at a nominal $1 for voting at the second creditors’ meeting
As part of the implementation of the Turnbull government’s National Innovation and Science Agenda, a suite of insolvency reform laws have been introduced, aimed at encouraging entrepreneurship rather than punishing corporate failure.
This week’s TGIF considers the Victorian Court of Appeal’s decision in Blakeley v CGU Insurance Ltd [2017] VSCA 378, which confirms the rights of third parties to seek direct access to proceeds of insurance.
This week’s TGIF examines an application for approval of voluntary administrators’ and liquidators’ remuneration in circumstances where the appointments were subsequently found to be invalid.
This week’s TGIF considers the decision of In the matter of Trico Constructions Pty Limited [2017] NSWSC 1831 and the broader question of when creditors should – and should not – issue statutory demands.
This week’s TGIF considers a priority contest which turned on the construction of section 62 of the PPSA and the reference to a grantor obtaining possession.
This week’s TGIF considers the decision in the matter of Bias Boating Pty Ltd [2017] NSWSC 1524 which deals with leave to join already named defendants to a “mothership” proceeding after expiration of the limitation period
This week’s TGIF considers the decision of Simpson & Anor v Tropical Hire Pty Ltd (in liq) [2017] QCA 274 in which the Queensland Court of Appeal considered whether a disposition of property by a company after the commencement of its winding up was v
Australia’s restructuring landscape has changed in recent weeks on two fronts – one of which arose rather unexpectedly from a Federal Court Decision.
This week’s TGIF considers Ziziphus Pty Ltd v Pluton Resources Ltd (Receivers and Managers Appointed) (in liq) [2017] WASCA 193, where the Court considered the impartiality and independence of liquidators.
This week’s TGIF considers In the matter of Ten Network Holdings Limited (subject to a deed of company arrangement) (recs and mgrs apptd) [2017] NSWSC 1529, which held that transferring shares under a DOCA wasn’t unfairly prejudicial to shareholders,
This week’s TGIF considers the case of Official Assignee in Bankruptcy of the Property of Cooksley, in the matter of Cooksley v Cooksley, in which the Federal Court granted assistance to the High Court of NZ in administering a bankruptcy
This week’s TGIF article considers the decision of Mensink v Parbery [2017] FCA 1248 and the options available to liquidators when a director fails to appear for examination, and when liquidators are faced with an appeal by a director who is unlikely
This week’s TGIF examines the determination of an application by a liquidator for directions as to the conduct of further investigations and for those costs and expenses to be paid from the assets of a trust.
This week’s TGIF considers the case of Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation [2017] FCA 953, where the Federal Court considered whether the claims of ‘non trust’ creditors in a bankruptcy are to be treated differe
This week’s TGIF considers Bank of Queensland Limited v Banjanin & Ors [2017] QSC 209, where the Court considered a challenge to asset-based loans.
This TGIF examines the determination of an application by liquidators of the Diploma Group of companies to be appointed as administrators of Diploma company and put a DOCA proposal to creditors.
This week’s TGIF considers Singh v De Castro [2017] NSWCA 241, where the New South Wales Court of Appeal held that five directors of an insolvent corporate borrower had executed and were bound by personal guarantees.
This week’s TGIF considers whether, in a voluntary administration, a report to creditors constituted sufficient disclosure and whether the proponent of a DOCA should be allowed to vote as a creditor in favour of that DOCA.
This week’s TGIF considers the effect of material non-disclosures and breach of parliamentary privilege on the setting aside of examination summonses issued under ss 596B and 597 of the Corporations Act 2001 (Cth).
This week’s TGIF considers whether a flexible payment arrangement between a subsidiary and its holding company creditor meant the parent suffered no loss on the insolvency of the subsidiary.
This week’s TGIF considers the decision of Knauf Plasterboard Pty Ltd v Plasterboard West Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] FCA 866 in which the Federal Court considered whether a security interest could be perfected
The NSW Supreme Court has given a Landlord leave to commence proceedings against a company for rent and make good costs arising after the date of the DOCA.
This week’s TGIF considers the decision of Mighty River International Ltd v Hughes, in which the WA Court of Appeal held that a ‘Holding DOCA’ was valid. The decision provides comfort to insolvency practitioners who use ‘Holding DOCAs’
This week’s TGIF considers the decision of EH 2015 Pty Ltd (in liq) v Caratti (No 3) [2017] WASC 210 which concerned the rights of a liquidator to funds paid into court as security by a company which subsequently became insolvent.
This week’s TGIF considers what the UK decision of Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 means for insolvency practitioners seeking to access potentially privileged documents created by employees of appointee companies.
This week’s TGIF considers Spiliotopoulos v National Australia Bank Limited [2017] NSWSC 971, where a mortgagee alleged a witness fraudulently attested to his signature on a mortgage and the bank registered the mortgage with notice of fraud.
This week’s TGIF examines a recent decision of the Supreme Court of New South Wales which considered whether payments made by a third party to a company’s creditors could be recovered as unfair preferences.
Two recent decisions have contradicted long-standing authority, resulting in both the Commonwealth and the ATO losing priority status.
This week’s TGIF considers In the matter of Duke Contracting Australia Pty Ltd [2017] NSWSC 767 where the New South Wales Supreme Court considered how a secured creditor seeking an extension to register a PMSI can demonstrate that the extension would
This week’s TGIF considers Credit Suisse AG, Sydney Branch v Springsure Property Holdings Pty Ltd (in liquidation) (receivers and managers appointed) [2017] QSC 142, in which the court considered whether real property acquired by the guarantor after
In an insolvency situation, there are risks in relying upon contractual or statutory set-off where a counterparty has granted security to lenders.
This week’s TGIF considers In re City Pacific Limited in which the NSW Supreme Court considered whether to approve a liquidator entering into a litigation funding agreement under which the funder would receive a premium of at least 50% of any judgmen
This week’s TGIF considers Alleasing Pty Ltd, in the matter of OneSteel Manufacturing Pty Ltd in which the Court considered the potential prejudice to creditors in extending the time for registration of security interests
This week’s TGIF considers Bunnings Group Ltd v Hanson Construction Materials Pty Ltd & Anor [2017] WASC 132, where the Court considered whether the order of registration of caveats determined the priority of competing unregistered charges.
This week’s TGIF considers the recent proposals to crackdown on rogue directors and reduce the burden on FEG to pay unpaid workers.
This week’s TGIF considers the case of In the matter of Boart Longyear Limited [2017] NSWSC 537 in which the NSW Supreme Court made orders to assist with the restructuring of a group of companies to the ultimate benefit of creditors
This week’s TGIF considers the recent decision of AMP Bank Limited v Brown and Kavanagh [2017] NSWSC 313, where the court found that unless a limited exception applies, it does not have the power to adjust the liability of a co-guarantor.
This week’s TGIF considers Linc Energy Ltd (in Liq) v Chief Executive Dept of Environment & Heritage Protection [2017] QSC 53, in which the Queensland Supreme Court directed that the liquidators of Linc Energy were not justified in causing it to fail
This week’s TGIF considers an objection by directors and related-party creditors to a liquidator retaining solicitors who had previously acted for a substantial creditor in proceedings against the company.
Do the draft amendments to the Corporations Act go far enough in helping companies seeking restructuring get back on track?
This week’s TGIF considers In the matter of 4 in 1 Wyoming Pty Ltd & the companies listed in Schedule A to the Originating Process [2017] NSWSC 407, where the New South Wales Supreme Court granted a financier an extension of time to register new and
This week’s TGIF considers Australia and New Zealand Banking Group Ltd v Bragg (No. 3) [2017] NSWSC 208, in which the Court rejected a borrower’s claims that it entered into a loan contract under duress and that the bank prevented its attempted sale
This week’s TGIF considers a recent Federal Court decision in which relief was sought under section 588FM of the Corporations Act to ensure a security interest perfected after the ‘critical time’ did not automatically vest.
This week’s TGIF considers the case of In the matter of CNL Transport Pty Ltd (in liq) [2017] NSWSC 291, where the New South Wales Supreme Court terminated a liquidation where the company was solvent and its debts had been paid.
This week’s TGIF considers Fordyce v Ryan & Anor; Fordyce v Quinn & Anor [2016] QSC 307, where the Court considered whether a beneficiary’s interest in a discretionary trust amounted to ‘property’ for the purposes of the Bankruptcy Act 1966 (Cth).
This week’s TGIF considers Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, in which the Court questioned whether the knowledge of a company is in fact the collective knowledge of its officers
This week’s TGIF considers a decision of the Victorian Supreme Court which examined the merits of appointing special purpose liquidators in circumstances where a creditor was only willing to fund investigations if the appointment was made.
This week’s TGIF considers In the matter of OneSteel Manufacturing Pty Limited (admin appt) [2017] NSWSC 21, where it was held that a PPSR registration was defective as the grantor’s ACN was not included in the registration.
A recent Court of Appeal decision has affirmed that liquidators may claim an equitable lien to recover their costs and expenses, even if no assets are realised and no fund exists.
This week’s TGIF considers In the matter of ACN 151 726 224 Pty Ltd (in liq) [2016] NSWSC 1801, where the Court dismissed a creditor’s application to remove liquidators who had refused to conduct public examinations of a director.
This week’s TGIF considers a decision in which ASIC sought significant penalty orders against a listed public company and its director for misleading and deceptive statements in a prospectus, non-disclosure to the ASX and breach of directors duties
This week’s TGIF considers a NSW Court of Appeal decision which confirms that liquidators who bring a claim for preference payments within the limitation period may amend that claim to capture additional transactions otherwise subject to a statutory
This week’s TGIF considers Tai-Soo Suk v Hanjin Shopping Co Ltd [2016] FCA 1404 in which the Court was required to determine the scope of a stay arising under the UNCITRAL Model Law on Cross Border Insolvency
This week’s TGIF considers a recent decision in the Victorian Supreme Court in which a Guarantor was released from liability as a consequence of the Lender’s inappropriate conduct in realising the security.
This week’s TGIF considers the recent decision of Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305 in which the Court held that privilege attached to an expert report prepared for the purpose of obtaining litigation funding
This week’s TGIF considers Re Akron Roads Pty Ltd (in liq) (No 3) in which the Court held that the liquidators had standing to seek a declaration against an insurer arising from the assignment of rights under a policy
In State of Victoria v Goulburn Administration Services (In Liquidation) and Ors [2016] VSC 654, Special Purpose Liquidators were appointed despite a potential conflict arising from their firm having conducted compliance audits.
This week’s TGIF considers a recent decision in which the Court directed that liquidators would be justified in utilising trust funds to conduct further investigations to identify and pursue potential claims available to a trustee.
This week’s TGIF considers Wood v Astra Resources Ltd (UK Company No 07620218) [2016] FCA 1192, in which the Federal Court was asked to recognise a foreign proceeding under the Model Law on Cross Border Insolvency.
This week’s TGIF considers Navarac Pty Ltd v Carrello [2016] WASC 327, in which the court held that a director was entitled to inspect certain records created by a receiver during the course of the receivership.
The NSW Court of Appeal recently rejected an appeal from a decision which held that a company director was not personally liable as a guarantor in circumstances where his electronic signature had been affixed to the guarantee without his knowledge.
This week’s TGIF considers the decision of Kimberley Diamonds Ltd, in the matter of Kimberley Diamond Company Pty Ltd (in liq) [2016] FCA 1016 in which the Court refused to allow the mandatory examination of a liquidator under s 596A
This week’s TGIF looks at the departure from the general costs rule considered in In the matter of Condor Blanco Mines Ltd (No. 2) in circumstances where the administrator was found not to have discharged the duty of essential neutrality.
This week’s TGIF considers Clive Palmer’s recent challenges to the constitutionality of the Court’s power under the Corporations Act to issue examination summonses.
This week’s TGIF considers the decision of Ziziphus Pty Ltd v Pluton Resources Limited (Receivers and Managers Appointed) (Subject to Deed of Company Arrangement) where the Court favoured the public interest in terminating a DOCA
A recent High Court decision has considered the issue of estoppel based on representations made during commercial negotiations.
This week’s TGIF considers the case of Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, where the Court exercised its power to “go behind” a judgment upon which a petitioning creditor relied as proof of a debt that was owed.
This week’s TGIF considers Mizuho Bank Ltd v Ackroyd where the Court considered whether s 440J will prevent the continuation of proceedings to enforce a guarantee against a director of a company in administration
This week’s TGIF considers a recent case where two individuals challenged their liability under guarantees given by them in respect of monies borrowed by their family trust for property development purposes.
This week’s TGIF considers CME Properties (Australia) Pty Ltd v Prime Capital Securities Pty Ltd [2016] WASC 231 which concerns a mortgagor’s application for an interim injunction to restrain a mortgagee from exercising its power of sale.
This week’s TGIF considers Britax Childcare Pty Ltd, in the matter of Infa Products Pty Ltd v Infa Products Pty Ltd (Administrators Appointed) [2016] FCA 848 which considers setting aside a DOCA and the administrator’s casting vote.
This week’s TGIF considers the latest in a string of significant decisions on the Code of Banking Practice. The case sends a clear message to bankers: fail to comply with the Code at your peril!
This week’s TGIF considers Brandon Industries (Vic) Pty Ltd v Locker Pty Ltd where the Court dismissed an application to set aside a statutory demand due to the applicant’s failure to establish a genuine dispute or offsetting claim.
This week’s TGIF considers Legend International Holdings Inc (In Liquidation) v Indian Farmers Fertiliser Cooperative Ltd & Kisan International Trading FZE [2016] VSCA 151 in which it was held that s 581 does not prohibit a winding up order where Ch
This week’s TGIF considers the most recent decision in a line of cases which hold that the provisions of the Code of Banking Practice may be incorporated into loan agreements, as well as guarantees given by individuals.
This week’s TGIF considers In the matter of Blue Sennar Air Pty Ltd (in liq); In the matter of Eye Plantain Pty Ltd (in liq) [2016] NSWSC 772.
This week’s TGIF considers the Federal Court decision of National Australia Bank Ltd v Garrett [2016] FCA 714 in which the Court stepped in to invalidate and restrain an improper registration on the PPSR
This week’s TGIF considers Palaniappan v Westpac Banking Corporation [2016] WASCA 72 in which the Court clarified the scope of ‘suspension clauses’ in guarantee agreements.
This week’s TGIF considers In the matter of Legend International Holdings Inc [2016] VSC 308 in which the Court declined to recognise a US Chapter 11 bankruptcy proceeding and made orders that the company be wound up.
This week’s TGIF considers the decision of Deputy Commissioner of Taxation v BE100 Property Investments Pty Ltd [2016] FCA 597 where the court found that a deed administrator acted unreasonably by attempting to terminate a deed of company arrangement
This week’s TGIF considers the decision in Hussain v CSR Building Products Limited, in the matter of FPJ Group Pty Ltd (In Liq), in which an ROT clause was held to be a “security”, defeating the liquidators’ unfair preference claim.
This week’s TGIF examines the NSW Supreme Court decision In the Matter of Kevin Jacobsen Pty Limited (in liq) [2016] NSWSC 538 which considered a challenge to an application under s 477(2B) to assign a cause of action.
This week’s TGIF considers the decision of In the matter of THO Services Limited [2016] NSWSC 509 in which the Court exercised its general power to extend the voluntary administration moratorium period to a commercial arbitration.
A recent NSW Court of Appeal decision has considered the validity of the Commissioner of Taxation’s treatment of debits and credits in an insolvency context.
The proponents of indirect or “market-based” causation in securities actions are vindicated by a decision of the Supreme Court of NSW in Re HIH Insurance Limited (In liquidation) [2016] NSWSC 482
This week’s TGIF considers In the matter of Banksia Securities Limited (in liquidation) (receivers and managers appointed) [2016] NSWSC 357 in which the Court uses its broad remedial powers to appoint special purpose receivers.
Victorian Supreme Court rules that the appointment of an administrator was invalid, void and of no effect because the directors did not genuinely believe the company was insolvent and appointed the administrator for an improper purpose.
This week’s TGIF considers the recent decision of the Federal Court which concerned the proper distribution of sale proceeds and whether those proceeds comprised part of the “property of the company”.
This week’s TGIF considers the decision of Crowe-Maxwell v Frost [2016] NSWCA 46 in which the Court held that a liquidator did not discharge his onus of proving relevant transactions were unreasonable director-related transactions
This week’s TGIF considers the decision in ANZ v Manasseh [2016] WASCA 41, where the court considered the enforceability of a guarantee when a subsequent credit contract is entered into without the guarantor’s consent.
Victorian Supreme Court confirms that, unless there is an express provision for the benefit of a guarantor, a creditor will not be required to exhaust its remedies against a debtor before having recourse to the guarantee.
The Turnbull Government’s Innovation Reforms provide for a more flexible approach to restructuring which will assist entrepreneurship and existing businesses battle digital disruption.
This week’s TGIF considers whether section 556(1) priorities apply to claims against trust assets and in particular the superannuation guarantee charge.
The Federal Circuit Court of Australia in McNally v Fazio (No. 3) [2016] FCCA 215 considers a petitioning creditor’s prima facie right to a sequestration order despite allegations of fraud, malice and incapacity.
In CGU Insurance Ltd v Blakeley & Ors, the High Court confirms the ability of certain third party claimants to directly pursue the insurers of insolvent and potentially insolvent insured defendants.
This week’s TGIF considers the decision of Commonwealth Bank of Australia v Currey in which the Court looks at whether a breach of clause 25.1 of the Code of Banking Practice renders a guarantee void or voidable.
Hedging agreements are an integral part of many loan transactions but often do not receive the attention they deserve. Here are four key points to bear in mind when drafting and negotiating a hedging agreement.
This week’s TGIF considers whether banks owe guarantors a duty to exercise the care and skill of a diligent and prudent banker in selecting and applying their credit assessment methods and forming an opinion about a customer’s ability to repay.
Four lessons to prevent a PPSA disaster happening to you.
Directors of companies facing financial difficulty must avoid a ‘head in the sand’ mentality.
Building company insolvencies are rife and state governments must act.
The spate of insolvencies in the NSW construction sector shows no signs of easing. On 24 October 2013, the Building and Construction Industry Security of Payment Act Amendment Bill 2013 was introduced into Parliament.
On 19 April 2013, the Federal Court of Australia handed down judgment in Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd granting Eopply leave to enforce a foreign arbitral award made in China against an Australian corporation in liquidation.
Holders of HIH (NZ) convertible notes have little hope of recovering any of their investment. But it didn’t have to end this way…
In government-sponsored construction projects, a new direct payment system could mitigate insolvency risk to employers and subcontractors if the head contractor’s business fails.
An amending bill has been introduced into the New South Wales Parliament which will make significant changes to the corporate reconstruction exemption provisions and introduce a specific anti-avoidance measure into the landholder duty provisions.
