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Insolvency safe harbour protections - a safety net for 'honest' directors? Seminar paper. June 2018
O'Farrell, David ; Singleton, Elizabeth ; Television Education Network (TEN) ;
Seminar Paper
Call No:
F KN 264.7 O 1
Melbourne, Vic.: Television Education Network (TEN)
The operation of the new safe harbour insolvency provisions for directors -- The duty of directors not to incur debt when insolvent -- Rationale for safe harbour -- The safe harbour response -- The director starts to suspect insolvency -- Starting to develop or implementing a course of action -- Proving the behaviour was reasonably likely (to lead to a better outcome than administration) -- Advice from appropriately qualified entity -- The better outcome test - objective test based on circumstances -- The problem of continuous disclosure -- Onus of proof on liquidator to establish course of action not reasonable in the circumstances -- Qualifications - the requirement to meet employee entitlements and taxation reporting obligations -- The 'ipso facto' clauses - preventing termination of supply during restructuring period -- Ipso facto provisions -- Rationale -- Application -- The stay -- The circumstances where the stay applies -- The period of the stay -- Typical rights affected -- Unaffected rights -- A typical scenario -- Powers of the court -- New advance or credit and liability of external administrator -- Conclusion - practical implications for contracts
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