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.
- 19 December 2011
Focus: Proposed reforms to insolvency industry regulationThe way the insolvency industry is regulated could be reformed under proposals contained in a Federal Government paper. The reform is aimed at promoting a high level of practitioner professionalism and competency, and increased efficiency in insolvency administration. Partner Michael Quinlan, Lawyer Laura Racky and Summer Clerk Nicole Meyer report
- 30 November 2011
Focus: Is it easier to bring proceedings against companies in administration?In a welcome development for anyone wanting to bring court proceedings against a company in administration, the NSW Supreme Court has lifted the statutory moratorium on proceedings against a company in administration to allow a plaintiff to enforce an arbitral award. It has also clarified its role in enforcing arbitral awards. Partner Michael Quinlan and Lawyer Jonathan Adamopoulos report
- 03 November 2011
Focus: Winding up foreign companies in Australia not so easyA recent Federal Court decision has provided important guidance for creditors of foreign companies who are considering using the special winding-up regime for foreign companies contained in the Corporations Act. Partner Michael Quinlan, and Lawyer David Harris report
- 29 September 2011
Focus: The Timbercorp class action cut downIn a landmark decision, the Victorian Supreme Court recently dismissed a class action by Timbercorp investors following the collapse of the Timbercorp Group in April 2009. Partner Irene Trethowan and Lawyers Kate Austin and Brenton Pollard look at the decision, which further clarifies the disclosure obligations of companies when issuing product disclosure statements for financial products and is likely to have implications for investors involved in other managed investment scheme class actions
- 23 September 2011
Focus: Trusty liquidators not left out of pocketThe Federal Court, in considering the collapse of the Great Southern group of companies, has reiterated that a trustee is entitled to be reimbursed or indemnified from the trust property for any expenses that have been properly incurred in the trust's management. Partner Michael Quinlan and Lawyer David Harris report
- 12 September 2011
Focus: UK Supreme Court enforces 'flip' clauseThe United Kingdom Supreme Court has held that a flip clause does not contravene the anti-deprivation principle under English bankruptcy law and this complements the position adopted by the High Court of Australia. Partner Michael Quinlan and Lawyer Sally Kirby report
- 02 September 2011
Focus: A 'privileged' life - receivers' legal professional privilege upheld in WAThe Supreme Court of Western Australia has held that a receiver can assert legal professional privilege over solicitors' bills of costs incurred by them through their receivership. Partner Philip Blaxill, Senior Associate Corey Steel and Lawyer Stephen Olynyk look at a case that also indicates this privilege extends to the narrations contained within solicitors' bills of costs and receivers' charging schedules
- 11 August 2011
Focus: Liquidators can't sell company property subject to non-assignment clauseThe NSW Court of Appeal has held that a liquidator's power to sell company property does not extend to the sale or assignment of contractual rights that are subject to a non-assignment clause. This limitation also applies to receivers and voluntary administrators. Partner Michael Quinlan and Law Graduate Stephen Lloyd report
- 15 July 2011
Focus: Court approves a creditors' trustThe NSW Supreme Court has recently authorised administrators to recommend a deed of company arrangement involving a creditors' trust to creditors, despite the Australian Securities and Investments Commission's published objections to these arrangements. Partner Michael Quinlan and Lawyer David Harris report
- 24 June 2011
Focus: When unfair preference must be repaid due to suspicion of insolvencyThe Victorian Supreme Court recently confirmed that a debtor's failure to pay its debts on time is, of itself, not a reasonable ground for a creditor to suspect the debtor's insolvency. Partner Michael Quinlan and Law Graduate Fiona Chung report
- 16 June 2011
Focus: No detailed explanation equals no guaranteeIt has recently been held that it would be unconscionable to allow a lender to enforce a guarantee against a borrower's wife, even though she was well-educated, not misinformed and understood the guarantee's general nature. Partner Michael Quinlan and Lawyer Stewart Webster report
- 10 June 2011
Focus: Opportunity to comment on insolvency profession reformThe Federal Government has released an options paper that examines proposals on regulatory reform of Australia's insolvency profession. Partner Michael Quinlan, Lawyer Veronica Blanpain and Law Graduate Fiona Chung report on the proposals, which could affect practitioners' remuneration and disciplining processes, and expand creditors' powers.
- 06 June 2011
Focus: Scope of receiver's liability for 'other amounts' wound backA recent decision has wound back the scope of a receiver's liability for 'other amounts' and emphasised the need for alleged 'owners' of goods to prove their ownership. Partner Michael Quinlan and Lawyer Sally Kirby report
- 18 May 2011
Focus: One Tel - the danger of 'hastening slowly'The NSW Supreme Court has handed down a decision setting aside service of the statement of claim brought by the special purpose liquidator of One.Tel Limited (in liq) and dismissing the proceedings in their entirety. Partner Malcolm Stephens and Senior Associate Chris Prestwich report
- 12 May 2011
Focus: Good news for lenders - shadow directorship risks clarifiedRecent guidance from the New South Wales Court of Appeal on the hotly debated elements of shadow directorship is good news for secured lenders in workout situations who wish to impose conditions on their continued support for their borrowers. While there is still a fine line between permissible conduct and shadow directorship, the case suggests that conditions on loans and/or forbearance do not a shadow director make. Partner Michael Quinlan and Lawyer Amy Spira report
- 02 May 2011
Focus: Litigation funding decision impacts on insolvency practitionersThe New South Wales Court of Appeal recently held, with significant implications for insolvency practitioners, that a litigation funding agreement constituted a 'financial product' and could be rescinded because the funder was not licensed to deal in 'financial products'. This follows the Full Federal Court's 2009 decision that litigation funding arrangements for class actions constitute 'managed investment schemes' (a particular type of 'financial product'). Partners Ross Drinnan and Michael Quinlan and Senior Associate Jenny Campbell report
- 21 April 2011
Focus: Recoverability of post-receivership costsA recent High Court of England and Wales decision has determined that costs incurred by a former court-appointed receiver after the receivership has ended can be recovered from receivership assets that are still subject to the former receiver's lien. Partner Michael Quinlan and Lawyer Mitch Riley report
- 14 April 2011
Focus: Court marshalls debtMortgagees should be aware of a recent England and Wales High Court decision that considers the circumstances in which the 'equitable doctrine of marshalling' of debt will apply. The doctrine operates in the same way in Australia. Partner Michael Quinlan and Senior Associate Przemek Kucharski report.
- 05 April 2011
Focus: UK Supreme Court abolishes expert immunityA landmark decision recently handed down by the UK Supreme Court has found that there was no justification to continue to give expert witnesses immunity from being sued for negligence in relation to the evidence they give in court or the views that they express in anticipation of court proceedings. The court did not accept that potential liability would result in reluctance on the part of experts to accept instructions, nor would it prevent them from exercising their overriding duty to the court and acting with diligence and integrity. Partner Michael Quinlan Senior Associate Joanne Howie report
- 30 March 2011
Focus: Alinta Finance restructuringSchemes of arrangement are re-emerging as an effective tool for restructuring companies with unsustainable secured debt. The Supreme Court of New South Wales recently made orders approving four schemes of arrangement between companies in the Alinta Finance group and their scheme creditors which effected a restructure of secured debt owed by those entities and a transfer of the ownership of the companies in Alinta Finance group to a company owned by the lenders. Senior Associate Christopher Prestwich reports
- 10 February 2011
Focus: Enforceability of guarantee covenants - use it or lose itLenders and landlords (and, in particular, anyone seeking to rely on a promise to obtain a guarantee of debt from a third party) should be aware of the recent New South Wales Court of Appeal decision that considered the enforceability of guarantee covenants and the circumstances in which an estoppel by representation will be found. Partner Michael Quinlan and Lawyer Madeleine Ellicott report
- 21 January 2011
Focus: New code of professional practice takes effectThe second edition of the IPA Code of Professional Practice for Insolvency Practitioners took effect from 1 January 2011. Partner Michael Quinlan and Lawyer Leesa Vanmali report on some of the significant changes
- 17 January 2011
Focus: Winding up a trustee company as termination of the trust?The NSW Supreme Court has determined that the bringing of a winding-up application by unitholders of a trust against the trustee company cannot be characterised as a step taken to terminate or vest the trust, or to procure the distribution of the trust's capital or assets. Partner Michael Quinlan and Lawyer David Harris report.
- 10 January 2011
Focus: What is 'the whole or substantially the whole' of a company's property?A recent decision of the Victorian Supreme Court gives some guidance on the circumstances when a secured lender, who is entitled to enforce a charge over 'the whole or substantially the whole of a company', has the right to appoint voluntary administrators to the company. Partner Michael Quinlan, Senior Associate Matthew McCarthy and Vacation Clerk Freya Dinshaw report.
- 23 December 2010
Focus: Receivers not obligated to pay employee entitlementsThe Federal Court has clarified receivers' obligations to pay employees' leave entitlements and superannuation contributions out of the assets of a company subject to a floating charge. The court held that receivers are only required to pay Entitlements that fall due before their appointment. Special Counsel Philip Blaxill and Lawyers Bryn Dodson and Melanie Rifici report
- 18 October 2010
Client Update: ASIC reports on its National Insolvent Trading ProgramThe Australian Securities and Investments Commission has released a report on the results of its National Insolvent Trading Program, aimed to help company directors avoid insolvent trading. Partner Richard Harris and Senior Associate Angela Martin report.
- 12 October 2010
Focus: If the cap fits - a warning to administratorsA recent New South Wales Court of Appeal decision gives further guidance as to whether a cap on an administrator's remuneration precludes them from seeking a review under section 449E(2) of the Corporations Act 2001 (Cth). Partner Michael Quinlan and Lawyer Clementine Allan report
- 06 October 2010
Focus: Court expands liability for rent 'or other amounts'Insolvency practitioners should take note of a recent NSW Supreme Court decision that adopted a broad approach to the legislation imposing liability on receivers and mortgagees in possession for rent or other amounts payable under a property contract. The same reasons would extend to voluntary administrators' liability. Partner Michael Quinlan, Senior Associate Tim Robinson and Law Graduate Jack Power report.
- 20 September 2010
Focus: Senate reports on regulation of insolvency practitionersThe transfer of responsibility for supervision of Australia's corporate insolvency regime, the introduction of a new licensing system for insolvency practitioners and changes to the regulation of practitioners' remuneration are just some of the reforms recommended in a recently released Senate Economics References Committee report on the insolvency profession. Partner Michael Ilott and Law Graduate Jack Power look at the recommendations.
- 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.
- 18 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
