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The Corporations Act

Jones Day

Australian Court Grants Relief From Liability for Penalty Imposed on Crypto-related Product

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The Federal Court of Australia has granted relief to a company under section 1317S of the Corporations Act 2001 (Cth) ("Act") following declarations that it contravened two civil penalty provisions in relation to one of its...more

White & Case LLP

Statutory Powers of Sale

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In 2023, we saw an increase in both voluntary administration and receivership appointments in Australia. In the context of Australia's economic climate this was unsurprising — debtor companies were grappling with volatile...more

White & Case LLP

Schemes of Arrangement in Australia

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A creditors' scheme of arrangement ("Scheme") can be a powerful restructuring tool implemented to achieve a variety of outcomes for a business, ranging from deleveraging or a debt-to-equity conversion to a merger and/or issue...more

White & Case LLP

Navigating Chapter 11 Restructurings in Australia: How Important is Recognition?

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In today's globalised economy, local recognition of foreign insolvency proceedings can be essential for the successful implementation of cross-border restructurings. This is particularly relevant in Australia — a popular host...more

K&L Gates LLP

Equitable Subrogation and "Controllers" for the Purposes of the Corporations Act 2001 - Can a Lawyer be a "Controller"?

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In Bolwell & Anor v NWC Finance Pty Ltd & Ors [2024] VSC 30, the Supreme Court of Victoria clarified that a lawyer will not be a "controller" of property within the meaning of section 9 of the Corporations Act 2001 (Cth) (the...more

Bennett Jones LLP

If It's Broke, Fix It: Amendments to the Alberta Business Corporations Act

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On March 28, 2023, the Alberta Government's Bill 10: Financial Statutes Amendment Act, 2023 (Bill 10) received Royal Assent. Bill 10 amends a number of key corporate statutes, including Alberta's Business Corporation Act, RSA...more

Jones Day

Stick to the Statute: No "Peaking" Around in Australia

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In Short - The Situation: The High Court of Australia has confirmed in Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 that the "peak indebtedness rule" is no longer available to liquidators when assessing the...more

A&O Shearman

Six indicia of a strong corporate whistleblower program: new Australian guidance

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A new report from the Australian Securities and Investments Commission (ASIC) should prompt companies to consider whether any changes need to be made to align their whistleblower program with ASIC’s proposed “good practices”....more

K&L Gates LLP

Ding Dong – Set-Off is Gone: Absolutely Set-Off is Definitely No Longer Available as a Defence to an Unfair Preference Claim:...

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The High Court of Australia in Metal Manufactures Pty Limited v Morton [2023] HCA 1 has confirmed the view of the Full Court of the Federal Court of Australia that the "set off" defence under section 553C of the Corporations...more

K&L Gates LLP

Reminder – Time is Running Out to Obtain Your Director Identification Number (DIN)

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There are a number of directors that will have until the deadline of 30 November 2022 to submit their applications to obtain a DIN. The deadline for submitting a DIN application differs according to the date on which the...more

Jones Day

First in Line in Australia: Resolving Competing Priorities Regimes When Winding up Companies in a Partnership

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In Short - The Situation: When winding up a company, liquidators must distribute any surplus funds following the satisfaction of any secured debts. The Corporations Act 2001 (Cth) contains a regime which provides that...more

Jones Day

Regulation of Class Actions in Australia Revisited … Again

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More Detail: Regulation of Litigation Funding in Class Actions In 2009, the Full Court of the Federal Court of Australia, in Brookfield Multiplex Ltd v International Litigation Funding Partners Pty Ltd [2009] FCAFC 147,...more

Jones Day

Stopping the Phoenix From Rising: Australian Court Provides First Guidance on Creditor-Defeating Dispositions

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Background - In February 2020, the Corporations Act 2001 (Cth) ("Act") was amended to add a new class of voidable transactions for companies that are being would up known as "creditor-defeating dispositions". This change was...more

Conyers

Going it Alone

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On 12 November 2021, the Supreme Court of Bermuda issued its written judgment in NKWE Platinum Limited v (1) Glendina Pty Limited and Ors (2) Genorah Resources (Pty) Limited. The Court’s ruling both provides helpful...more

K&L Gates LLP

Ding Dong – Set-off is Gone | Set-off is No Longer Available as a Defence to an Unfair Preference Claim

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For some time, the reliance on section 553C of the Corporations Act 2001 (Cth) (Act) as a "set-off" defence to an unfair preference claim, under section 588FA of the Act, has caused much controversy in the insolvency...more

Jones Day

Australian Court Grants Shareholders Access to Bank's Internal Documents to Assess Alignment With Climate Change Commitments

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On 4 November 2021, the Federal Court of Australia made orders by consent which require the Commonwealth Bank of Australia ("CBA") to permit the plaintiff shareholders to inspect and make copies of books and records that...more

Jones Day

Australian Federal Government Proposes Major Class Action Law Reforms

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Proposed Reforms - The Draft Bill makes clear that 'a class action litigation funding scheme' is an MIS, in line with an earlier ruling of the Federal Court of Australia in Brookfield Multiplex Limited v International...more

A&O Shearman

ASIC signals its approach on new breach reporting obligations

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New breach reporting obligations for Australian financial services and credit licensees come into effect on 1 October 2021. This post considers ASIC’s draft guidance on some of the key features of these reporting obligations....more

Bennett Jones LLP

Beyond Review: Supreme Court of Canada Confirms Courts are Unlikely to Interfere with Voluntary Associations

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In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22 [Ethiopian Orthodox] the Supreme Court of Canada elaborated on the circumstances in which courts will intervene in the affairs of voluntary...more

K&L Gates LLP

The Conscience of the Fictional Reasonable Person and the Concept of "Doing the Right Thing" - Their Impact on Directors Duties

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The ‘reasonable person’ test is used to interpret much of our statutory law and concepts in equity. It is the required standard to determine the extent of directors’ duties under the Corporations Act, which imposes their...more

Jones Day

ASIC Doubles Down on Civil Penalty Proceedings Against Industry Superannuation Funds

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REST and Statewide Superannuation become the first industry superannuation funds to be caught in the crosshairs of ASIC's "why not litigate" approach to enforcement. The Australian Securities and Investments Commission...more

Jones Day

Australian Financial Services Regulatory Update - February 2021

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This edition of the Update covers: 1. Recent legal and regulatory developments, including the release of APRA's policy and supervision priorities for 2021, the launch of APRA's Cyber Security Strategy 2020 – 2024,...more

K&L Gates LLP

Corporations Act Changes Affecting Director Resignations

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On 18 February 2021, changes to the Corporations Act 2001 (Cth) in relation to director resignations made by the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) will take effect. The new provisions...more

Jones Day

Australian Company & Securities Update | Issue One

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KEY LEGAL AND REGULATORY DEVELOPMENTS - Legislative and Regulatory Reform - Permanent reforms in respect of virtual meetings and electronic execution - On 19 October, the Federal Government released for...more

Hogan Lovells

Compulsory Share Transfers under Deeds of Company Arrangement – updated ASIC policy

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ASIC has provided long-awaited confirmation of its policy position with regard to applications for relief from the operation of the takeover restrictions in the Corporations Act 2001 (Cth) ("Act") in relation to compulsory...more

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