Liam Hennessy - Partner and Adjunct Professor

This has practical application with regards to an insolvent company undertaking a s588GA Safe Harbour Turnaround or Restructuring, where there is protection for Directors from Insolvent Trading Personal Liability (2017)… …and s588FDB creditor-defeating disposition (2020) which is a voidable action (ASIC order) available to the liquidator or ASIC. No order can be made where the disposition was: 1. For market value and/or 2. part of the Safe Harbour restructuring (“better outcome” test). This needs to be executed with precision and only the most experienced reputable and qualified advisors can be trusted. It’s a highly specialist area and directors should always request references from an advisor’s former clients. #phoenixing #turnaround #preinsolvency #restructuring #safeharbour #insolvent #governance

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Today brings new guidance from ASIC on safe harbour provisions! Updated Regulatory Guide 217 follows consultation with directors, professional advisers, registered liquidators, turnaround and restructuring professionals, and other interested parties. Key updates include: • outlining further guidance on s588GA(2) of the Corporations Act; • including practical examples relating to safe harbour; • an additional table with a non-definitive list of course(s) of action or steps ASIC considers may be reasonably likely to lead to a better outcome (than administration or liquidation); • specific additional guidance on the interpretation of legislative terminology, such as ‘reasonably likely’ and ‘better outcome’; and • noting in the guidance that safe harbour protections are available to directors of charities or not-for-profit organisations incorporated under the Corporations Act. RG217 can be accessed in the link in the comments. For those looking for some light weekend reading, I've also linked the response by ASIC to submissions it received regarding the proposed updated guidance through Consultation Paper 372.

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The High Court of Australia has published two significant decisions in arbitration practice. In Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24, the Court considered the application of the South Australian proportionate liability statutory regime to arbitral proceedings. The regime enables a respondent wrongdoer to join an alleged concurrent wrongdoer to a proceeding. The question was whether the regime applies to an arbitration in circumstances where the capacity to join a concurrent wrongdoer cannot be transposed to an arbitration. The Court held by a 5:2 majority that proportionate liability statutes were capable of applying in arbitration. Jonathon Redwood SC, Kate Lindeman and Boxun Yin appeared for ACICA. In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28, the Court considered the extent of a supervisory court’s role in reviewing a tribunal’s finding that it was not functus officio, in the context of the ground for setting aside an arbitral award. There, a tribunal had bifurcated the arbitration between liability and quantum. It issued an award on liability issues. When the claimants sought to agitate additional liability issues, the respondent objected on the basis that the claimants were precluded by preclusive estoppel from agitating those issues. The majority (Gageler CJ, Gordon, Edelman, Steward and Gleeson JJ) upheld the principle that an arbitrator was functus officio in relation to the issues to which an interim award relates. John Sheahan KC and Boxun Yin appeared for CBI Constructors. Link to Tesseract: https://lnkd.in/gUHwUsdp Link to CBI Constructors: https://lnkd.in/giFi5HK3

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The Albanese Government is making bold moves to reform the Australian Consumer Law, addressing AI-enabled goods and services, unfair trading practices, supplier indemnification and breaches of consumer guarantees. As businesses and consumers face an increasingly digital and AI-driven economy, these reforms aim to crack down on dodgy practices and future-proof regulations. In this article, Clint Fillipou and Jennifer Andrade break down the proposed changes and explore how they might be implemented. | https://lnkd.in/gZhz2qcm #ConsumerProtection #AIRegulation #EthicalTrading #AnisimoffLegal

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The High Court of Australia has ruled that proportionate liability applies in arbitrations. Last week, the High Court handed down a significant judgment and overruled the South Australian Court of Appeal in Tesseract International v Pascale Construction [2024] HCA 24.   The decision is a major win for respondents to arbitrations, which clears the way for respondents to limit liability by identifying non-party concurrent wrongdoers, despite the inability to join concurrent wrongdoers to an arbitration. This decision may cause delays for claimants, who will now need to pursue concurrent wrongdoers in subsequent proceedings to recover their total losses, which may result in insufficient compensation for a claimant if concurrent wrongdoers are insolvent or unable to pay their share.   Michael Harty, Partner, and Monique Kotevski, Lawyer, discuss the judgment and practical implications in more detail.   Read more https://lnkd.in/gEHbnNeC #Auslaw   If you found this insight article useful and you would like to subscribe to Gadens' updates, click here: https://lnkd.in/gwqNGne  

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Insolvency Law Update - by Panagiota Pisani. The High Court pronounces on the immunity of a ‘separate entity’ of a foreign state from Australian winding up proceedings. Can a creditor commence winding up proceedings against a separate entity of a foreign State that is registered as a foreign company under Div 2 of Pt 5B.2 (‘Part 5.7 body’) of the Corporations Act 2001 (Cth) (‘Corporations Act’)? Panagiota Pisani considers the High Court’s decision and the possible implications for winding up proceedings in Australia. View the complete article here: https://lnkd.in/g7-4td5X #insolvencylaw #commerciallitigation #disputeresolution #victorianbar

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PODCAST: KWM competition law partners Caroline Coops and Simon Cooke join M&A partner and co-author of KWM's Directions report Rhys Casey, to discuss the consequences of the sweeping overhaul to Australia's merger clearance regime. Concerns include the increased ACCC workload, the need for timely waivers and the potential for additional red tape making it harder for businesses to do deals aimed at improving their competitiveness and productivity - all key business priorities identified in the Directions report. Listen now via: Apple - https://lnkd.in/gKChkYSG Spotify - https://lnkd.in/gzxUs6vt Read our report: https://lnkd.in/gyFUdNzs

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The Supreme Court handed down its decision in Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406 on 19 April 2024. Read more in this case note by Senior Associate Qiming Zhou below. #AusLaw #SupremeCourt #NSW #InsuranceLaw #McCabes #LegalInsights

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Named after the great bullfighter, Manolete offers non-recourse funding to Insolvency Practitioners in insolvency litigation claims. Non-recourse = the insolvent estate doesn't need to pay back the money if the claim is lost. Manolete covers all legal fees and expenses, making insolvency litigation affordable for insolvent estates. It's a win-win. Thanks to Manolete, Insolvency Practitioners can now progress claims to court. Now, who's ready to charge like a bull? 🐂

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Corporate Wrap-Up / 20 September 2024. // A weekly summary of the key developments in the world of Australian corporate law. In this edition: 🔍 Listed@ASX compliance update 🧠 Commentary from ASIC on compliance 🌳 Climate-related financial disclosure 🔗 Australian Financial Market Infrastructure laws ⛔ ASIC stop orders 🎯 Takeovers Panel application #corporatelaw #corporategovernance #mergersandacquisitions

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Today's #ReadFirstLegal recommendation is: 'The Catch-22 of Law Firm Partner Profits' by Jordan Furlong https://loom.ly/pfc-Bq4 #auslaw #lawfirmstrategy #strategy #psf #psfbd

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The Chambers and Partners 2024 International Fraud & Asset Tracing Global Practice Guide is out now. HFW's Jo Delaney and Ranjani Sundar authored the Australian chapter of the Guide, providing a detailed overview of the legal framework governing fraud, insolvency and asset tracing in Australia, as well as an in-depth analysis of the latest trends and legal developments. George Lamplough, Lee Landale and Vanessa Cheng authored the Hong Kong chapter of the Guide, which sets out key areas of Hong Kong law and practice, including interim relief, tracing, proprietary claims against property, enforcement, and issues which arise in cross-border fraud claims, plus developing areas of Hong Kong law such as claims involving crypto-currency and "defendants unknown". Read the Australian chapter here: https://lnkd.in/gSjgsms6 Read the Hong Kong chapter here: https://lnkd.in/g_5AvMrP For more information on HFW's expertise in fraud and asset recovery, visit: https://lnkd.in/gkk_AypX #ChambersAndPartners #Fraud #FraudAndAssetTracing #AssetTracing

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Corporate Wrap-Up / 13 September 2024. // A weekly summary of the key developments in the world of Australian corporate law. In this edition: 📨 Final report into online meetings and electronic execution 🔦 ASIC enforcement and regulatory update 🔍 Continuing focus on design and distribution obligations 📣 Shareholder communications in schemes of arrangement #corporatelaw #corporategovernance #mergersandacquisitions

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Interesting case: Parwan Investments Pty Ltd (Recs Apptd) v Hooper [2024] VSCA 86. The appeal ran unopposed. Hooper was a purchaser off-the-plan from Parwan. Parwan's mortgagee appointed receivers over the property prior to the registration of the plan. Hooper sought orders for specific performance of the contract. The central question in the appeal was whether a mortgagee could be compelled to provide a partial discharge of mortgage secured over a parent title once the property had been subdivided - ultimately to determine whether specific performance was a remedy available to Hooper. The receivers for Parwan argued, that the mortgagee could not be compelled to partially discharge its mortgage - and were ultimately successful. What is interesting however is it doesn't appear in the reasons that the Court considered section 8 of the Sale of Land Act 1962, which provide that a mortgagor may request its mortgagee to apportion secured monies over newly subdivided lots and for an arbitrator to be appointed if the level of apportionment cannot be agreed. Given the matter ran unopposed, perhaps section 8 was not brought to the Court's attention? Whilst Hooper was not the mortgagor, section 8 suggests that the mortgagee could be compelled to apportion the secured debt and partially discharge its mortgage in respect of newly subdivided lots. Full decision: https://lnkd.in/gpTp5WJd

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One year on, we have decided to delve a little deeper into Metal Manufacturers v Morton, for its broader implications for voidable transactions, and the analysis by the High Court of the voidable transactions and pari passu regimes within the Corporations Act 2001 (Cth), and their relationship to the set-off provisions in section 553C

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Professional liability or negligence claims remain a significant source of frustration, irritation, and burden for lawyers in New Zealand. http://spr.ly/6045oWjI5 Damian Schade discusses this issue with the editorial team of the New Zealand Law Society Te Kāhui Ture o Aotearoa. Learn more about the steps you can take to reduce the likelihood of liability claims affecting you or your firm: http://spr.ly/6045oWjI5 #RiskManagement #Law

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