Our experienced Insolvency & Restructuring legal team regularly publishes articles and updates - the full list of publications appears below. Recent high-profile insolvencies have highlighted the need for all companies to be aware of their liabilities and responsibilities under the law. If you'd like to be notified when we add new insolvency & restructuring publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.
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For an overview of the most important cases and developments in this area, see our Insolvency law blog. This service will replace our Annual Review of Insolvency & Restructuring Law.
- 01 September 2010
Client Update: Octaviar in the High Court - The issues appear dead, buried and crematedThis morning, the High Court unanimously rejected the appeal from the decision of the Queensland Court of Appeal and thus quashed the first instance decision in Octaviar which had thrown long-accepted practices into doubt. On a first reading, affected parties can now relax. Partners Diccon Loxton and Andrew Boxall and Lawyer Michael Wells report
- 24 August 2010
Focus: Court clarifies extent of receiver's lienA recent decision of the NSW Supreme Court has helped to clarify the extent of a receiver's indemnity and lien and confirmed that a receiver will not be entitled to retain funds upon the end of an appointment where there is no demonstrated basis for a finding of actual or future liability of the receiver. Partner Michael Quinlan and Lawyer Madeleine Ellicott report
- 19 August 2010
Focus: High Court leaves third-party release distinction between schemes and DOCAs unchallengedIn two recent decisions, the High Court of Australia has refused to entertain criticism of the Full Federal Court's decision in Fowler v Lindholm, in which it was held that creditors can be bound by a scheme of arrangement under Part 5.1 of the Corporations Act in relation to debts owed by persons other than the company. Partners John Warde and Michael Quinlan and Lawyers Catherine Zahra and Patrick Crisp report
- 30 July 2010
Client Update: ASIC guidance for directors on preventing insolvent tradingThe Australian Securities and Investments Commission has released a guidance note for directors that sets out what it considers to be the key principles in helping directors understand and comply with their duty to prevent insolvent trading. Partner Richard Harris and Senior Associate Angela Martin report.
- 13 July 2010
Focus: Unfair preference dependent on ultimate effect of transactionThe Victorian Court of Appeal recently considered whether mining lease rents and royalty payments made to the Minister administering the Mining Act 1978 (WA) were unfair preferences under section 588FA of the Corporations Act 2001 (Cth). Partner Michael Quinlan and Lawyer Leesa Vanmali report on a decision that may affect a liquidator's ability to recover certain payments in a winding-up
- 07 June 2010
Focus: When is it safe to rely on a 'material adverse change' as a default?The circumstances in which a 'material adverse change' clause will trigger an event of default under security documents, and the lender's absolute discretion in determining such a change, has been analysed in a recent NSW Supreme Court decision. Partner Michael Quinlan and Lawyer Clementine Davidson report
- 03 June 2010
Focus: Getting access to insurance policies of a company in liquidationWhether the insurance policies of a company in liquidation are 'books of the company' able to be inspected by creditors under section 247A of the Corporations Act 2001 (Cth) has been considered in a recent application for leave to commence proceedings under s500(2). Partner Michael Quinlan and Law Graduate Hugh Boylan report
- 17 May 2010
Focus: Shadow director claims against creditor rejectedA recent decision has examined whether a creditor of a distressed company can be an officer or shadow director of the company. Partner Michael Quinlan, Senior Associate Chris Peadon and Law Graduate Tom Levi report.
- 17 March 2010
Audio: Octaviar goes to High Court, despite PPS there's life in the old dog yetThe Octaviar saga continues, with the High Court agreeing last week to hear the appeal against the Queensland Court of Appeal decision last year to overturn the original decision. Partner Diccon Loxton speaks to Boardroom Radio about the potential impact of the new personal property securities legislation on both the relevance of the Octaviar decision and the law surrounding company charges
- 26 February 2010
Paper: Implications of the Federal Court's decision in the Lehman Brothers collapseIn City of Swan v Lehman Brothers Australia Ltd, the Full Court of the Federal Court unanimously held that section 444D of the Corporations Act 2001 (Cth) (the Corporations Act) does not authorise a deed of company arrangement that releases or compromises creditors' claims against third parties
- 15 February 2010
Focus: Court completely forgives director's insolvent trading liabilityFor the first time, a judge has exercised his discretion under the Corporations Act 2001 (Cth) to provide a director with complete relief from penalty following a finding of insolvent trading. Partner Michael Quinlan and Lawyer Catherine Zahra report on a recent Federal Court decision
- 20 January 2010
Focus: Government announces package of reforms to Australia's corporate insolvency lawsThe Federal Government's package of reforms to Australia's corporate insolvency laws, announced yesterday, proposes the adoption of additional mechanisms to encourage the reorganisation of companies in financial distress outside of external administration. The paper invites interested parties to make written submissions to the Treasury, which must be lodged by 2 March 2010. Partner Michael Quinlan and Lawyer Catherine Zahra report
- 19 January 2010
Audio: Off, Gwalias Sons! Let us rejoice!The Federal Government has today proposed a reversal of the Sons of Gwalia decision. Partner Diccon Loxton speaks to Boardroom Radio about what the Federal Government needs to do to reverse the decision and what effect such a move will have on insolvency laws in Australia
- 15 December 2009
Focus: ASIC's unofficial policy on takeover schemes - should it be made official?On 11 December, ASIC issued an updated version of its Regulatory Guide 60 on schemes of arrangement, and a consultation paper asking whether it is appropriate for ASIC to maintain its unofficial policy of withholding its s411(17)(b) certificate of 'no objection' at the second court hearing in relation to a takeover type scheme where an objector wishes to argue 'avoidance' of the takeover provisions in Chapter 6 at the hearing. Partner Guy Alexander and Senior Associate Emin Altiparmak explain why that policy is inappropriate (a point we have been making since it was introduced in the early 2000s). They also briefly look at the guidance in updated RG 60 on reverse takeover schemes
- 30 November 2009
Focus: Winding up managed investment scheme with insolvent responsible entityThe New South Wales Supreme Court recently found that if a responsible entity of a managed investment scheme goes into administration, it will still be liable to pay the shortfall in the costs of winding up any of the schemes for which it is responsible, even though this will reduce the pool of funds available to its unsecured creditors. Partner Michael Quinlan and Lawyer Ruth Greenwood report
- 25 November 2009
Focus: Guidance for directors on duty to prevent insolvent tradingGuidance to help directors understand and comply with their duty to prevent insolvent trading is contained in a new Australian Securities and Investments Commission consultation paper released yesterday. Partner Michael Quinlan and Lawyer Catherine Zahra report.
- 17 November 2009
Audio: PPS coming, ready or notPersonal property securities legislation is now a step closer to being passed by Federal Parliament. It's time for organisations to start to get ready. Allens Partner Diccon Loxton speaks to Boardroom Radio on how this legislation will affect a wide spectrum of transactions and businesses, and why organisations need to start thinking now about how they will need to change their policies, systems, documentation and training
- 30 October 2009
Focus: Court clarifies extent of a controller's dutiesA recent decision of the Federal Court of Australia clarifies the extent of a controller's duties under section 420A of the Corporations Act 2001 and confirms that personal causes of action, such as a claim for breach of sections 232 or 420A, are not assignable. Partner Michael Quinlan and Lawyer Catherine Zahra report
- 19 October 2009
Client Update: Octaviar, round 3 - the saga continues. What should we do now?As we reported last week, in the ongoing Octaviar matter an application was lodged with the High Court on Thursday 15 October 2009 for special leave to appeal against the decision of the Queensland Court of Appeal, which had overturned the unsettling first instance judgment. In this Client Update, Partners Diccon Loxton and Andrew Boxall discuss the implications and suggest ways forward pending the High Court decision. As with some of our previous communications on this matter, this Client Update has been prepared jointly by us and Mallesons Stephen Jaques in consultation with John Sheahan SC
- 16 October 2009
Client Update: Octaviar 3 - Just when you thought it it was safe to get back into the waterAn application has been lodged this morning with the High Court of Australia for special leave to appeal from the decision of the Queensland Court of Appeal in the Octaviar case, discussed in our Client Update: Octaviar - was it all just a bad dream? Partners Diccon Loxton and Andrew Boxall report
- 18 September 2009
Audio: Octaviar decision is dead, or is it?In a unanimous decision today, the Queensland Court of Appeal has overturned the first instance decision in the Octaviar case, which had caused consternation in financial markets by suggesting that many existing charges are at least partially ineffective. Partner Diccon Loxton speaks to Boardroom Radio about the possible implications of today's decision
- 14 September 2009
Focus: The Bell Group litigation: liquidator seeks directionsPartner Michael Quinlan and Lawyer Peter Kim discuss the latest decision relating to the Bell litigation. In this decision, the Supreme Court of Western Australia considered the liquidator's application for directions under section 479(3) of the Corporations Act 2001 (Cth) about a proposed course of action in the liquidation
- 02 September 2009
Focus: Garnishee notice served by the Commissioner of Taxation after liquidation is voidThe High Court has unanimously held that a garnishee notice issued by the Commissioner of Taxation after the commencement of a winding-up of the debtor company was void. Senior Associate Christopher Prestwich and Lawyer Peter Kim report
- 01 September 2009
Focus: Mistakes and misdeeds: Setting aside the Octaviar DOCAsThe Queensland Supreme Court recently set aside two deeds of company arrangement because they were not in the best interests of the company's creditors, and because misleading and incomplete information had been provided to the creditors at the time they voted on whether to approve the two deeds. Senior Associate Christopher Prestwich and Lawyer Ruth Greenwood report
- 07 August 2009
Client Update: Complex corporate collapses and schemes of arrangement - Opes PrimeThe Federal Court of Australia has approved the Opes Prime schemes of arrangement which not only provide for the release of creditors' claims against the Opes companies, but also claims against their financiers. The decision paves the way for schemes to be used as an efficient mechanism to resolve the multitude of litigation that can flow from complex corporate collapses. Partners Belinda Thompson and Anne Ferguson report
- 29 July 2009
Client Update: GST and representatives of incapacitated entitiesIn an attempt to reverse the effects of a recent court decision, the Federal Government has released draft legislation intended to make the representative of an incapacitated entity (and not the incapacitated entity) liable for GST on supplies made by the incapacitated entity. Partner Michael Perez, Senior Associate Chris Peadon and Lawyer Gulfam Ahmed report
- 16 July 2009
Paper: Securitisation and InsolvencyIt has been said that you cannot pour new wine into old skins. That is not a rule which has hindered the creativity of the promoters and designers of securitisation trust structures, especially over the past decade. Their efforts have resulted in exotic combinations of otherwise familiar debt instruments and trusts
- 21 June 2009
Paper: Insurance/Insolvency - View from the OutbackThis paper looks at the judicial management regime for insolvent Australian insurers and Chapter 15 of Title 11 of the US Code.
- 27 May 2009
Paper: Latest developments in insolvent tradingThe present global meltdown has put directors in an invidious position: they may have assets on their books that they consider to be very valuable but little access to funding to borrow against them and little interest from buyers at what they consider to be appropriate values. This may be because potential buyers of assets are also having trouble accessing credit
- 01 May 2009
Client Update: Octaviar - practical solutionsOn 13 March 2009 we sent out a Focus about the Queensland Supreme Court's decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd 2009 QSC 37, which raised issues around the registration of charges and variations to them
- 06 April 2009
Focus: Safety at WorkIn our quarterly Focus on safety at work, we look at the second report on harmonisation of occupational health and safety laws in Australia, the dangers for employers even if an occupational health and safety risk is not located on work premises, risk assessment and the Beaconsfield Gold Mine disaster, the s28(a) defence in NSW, and the high penalties attracted by a failure to manage well-known risks to safety at work.
- 02 April 2009
Focus: Court of Appeal shuts out inquiry into liquidators' conductThe NSW Court of Appeal has unanimously held that an inquiry ordered by a trial judge into liquidators' conduct should not occur. Partner Michael Quinlan and Senior Associate Angela Martin look at the decision in Hall v Poolman in which they acted for the liquidators in the successful appeal
- 13 March 2009
Focus: Variation of registered charges and the Octaviar decisionA recent decision of the Queensland Supreme Court may have serious consequences for many existing secured financing arrangements. Partner Andrew Boxall and Senior Associate Nicholas Adkins report that it might also force a change in market practice for notification to ASIC of variations in liabilities secured by registered charges
- 27 February 2009
Focus: Cross-border insolvency and the Betcorp decisionOn 9 February 2009, in In re Betcorp Limited (In Liquidation), the US Bankruptcy Court handed down judgment in favour of an Australian liquidator in a cross-border insolvency proceeding under Chapter 15 of the US Bankruptcy Code. This is the first time an Australian voluntary winding up has been recognised in the US, or anywhere else, as a 'foreign main proceeding'. Partner Michael Quinlan and Lawyer Pouyan Afshar report
- 19 December 2008
Client Update: Insolvency/GSTA recent Federal Court case has dealt with the issue of whether a liquidator is personally liable for GST payable on supplies made while a company is being wound up. Partner Ross Stitt and Summer Clerk David Allen report
- 04 December 2008
Client Update: Insolvency & RestructuringThe Queensland Government has introduced a Bill to alter the operation of section 85 of the state's Property Law Act. As Partner Michael Ilott explains, the Bill introduced yesterday is expected to become law this week
- 19 November 2008
Paper: Insolvency - Advising a company in financial distressThe present global meltdown has put directors in an invidious position: they may have assets on their books that they consider to be very valuable but little access to funding to borrow against them and little interest from buyers at what they consider to be appropriate values. This may be because potential buyers of assets are also having trouble accessing credit
- 19 November 2008
Focus: Insolvency & RestructuringPartner Diccon Loxton looks at the recent decision of the Western Australian Supreme Court in the Bell Group Ltd litigation, which is a timely case study of the legal issues involved in work-outs and corporate guarantees
- 05 November 2008
Paper: Insolvency & RestructuringInsolvent trading: The latest developments and uncertain future
- 21 October 2008
Focus: Insolvency/InsurancePartner Michael Quinlan and Senior Associate Claire Forster consider the decision of the Supreme Court of New South Wales in New Cap Reinsurance Corporation (in liq) v Grant and discuss the implications for insolvency practitioners and insurance and reinsurance companies
- 02 September 2008
Focus: InsolvencyIn January 2008, the Court of First Instance in Hong Kong approved the appointment of one of the receivers of an insolvent company as a joint and several liquidator despite the potential conflict of interest. Partner Simon McConnell and Senior Associate Mun Yeow look at the importance of the ruling in Re Orient Power Holdings Limited
- 27 May 2008
Focus: InsolvencyPartner Anne Ferguson and Lawyer Eloise Dias discuss a recent Federal Court decision that considers whether contractual debts to a litigation funder for fees, expenses and a percentage of the proceeds will take priority over the claims of secured creditors
- 20 May 2008
Focus: Insurance & ReinsuranceThe Full Court of the Federal Court has held that an applicant can join an insurer to legal action against the insured, even if the insured does not wish to seek indemnity from the insurer. Partner Jenny Thornton and Law Graduate Bryn Dodson look at the decision in Employers Reinsurance Corporation v Ashmere Cove Pty Ltd that has potentially wide-ranging consequences for insurers
- 07 May 2008
Paper: Mistakes and Misdeeds: External Administrators, Personal Liability and Loss of OfficeThis paper is concerned with things that can go wrong from the perspective of an insolvency practitioner engaged in an external administration governed by the Corporations Act 2001 (Cth)
- 18 April 2008
Focus: Insolvency / InsuranceThe House of Lords has acceded to a letter of request that the English court received from the Supreme Court of New South Wales and has ordered that assets held by the HIH group of companies in England should be remitted to Australia for distribution in accordance with Australian law. Partner John Morgan and Senior Associate Christopher Prestwich report
- 11 April 2008
Focus: InsolvencyThe High Court has held that a court cannot extend the time to comply with a statutory demand if the time for compliance has already passed. Partner Malcolm Stephens, Lawyer Anthony Lepere and Law Graduate Bryn Dodson look at the High Court's decision that provides welcome certainty for creditors
- 17 March 2008
Focus: Banking & FinanceThe appointment of an administrator to a borrower by its directors or a third party can pose risks for a secured creditor. In particular, it will be restricted, and delayed, from enforcing its security during the period of the administration. Senior Associate Nicholas Adkins and Lawyer Valeska Bloch report on the statutory steps involved in a voluntary administration and consider the potential risks for a secured creditor and ways these can be mitigated
- 12 March 2008
Paper: The Administrator's Casting VotePartner Michael Quinlan and Senior Associate Michael Popkin discuss regulations of the Corporations Regulations 2001 which apply to the convening, conduct of and voting at all creditors' meetings (as well as meetings of members, committees of inspection and committees of creditors) convened under Parts 5.3A, 5.4, 5.4B, 5.5 and 5.6 of the Corporations Act 2001 (Cth) (the Act) which deal with voluntary administration, deeds of company arrangement and liquidation.
- 15 February 2008
Client Update: InsolvencyDraft legislation to incorporate the UNCITRAL Model Law on Cross-Border Insolvency into Australian law, first introduced in September 2007 by the previous Federal Government, has been reintroduced into Parliament by the newly appointed Minister for Superannuation and Corporate Law as a new Senate Bill. Partner Paul Nicols and Senior Associate Michael Popkin report
- 15 February 2008
Paper: Unravelling the latest court decisionsPartner Michael Quinlan discusses four issues and concentrates on analysing four of the more interesting decisions of 2007
