Month: March 2017

Memorandum of Understanding – AFSA and ARITA

The Inspector-General in Bankruptcy has announced that a memorandum of understanding has been entered into between AFSA and ARITA, dated 20 February 2017.  The MOU records various general liaison arrangements and other such matters but it is not, as had been anticipated, entered into in support of the new law introduced by the Insolvency Law Reform Act 2016, which […]

Funding of ASIC’s insolvency regulation – what has the Attorney-General got to say?

Bills have been introduced into parliament to provide funding for ASIC’s regulation of the industries and professions it regulates. In relation to corporate insolvency practitioners – call them liquidators – a proposal is on the table that would impose fees on liquidators themselves, consistent with the view that those regulated should fund the cost of their regulation. […]

Australian safe harbour and ipso facto reforms

Obviously prompted by my reporting of significant restructuring reforms in the EU, and my query as to the long delayed progress in attending to proposed reforms in Australia, the government has today released the obliquely named Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017. These reforms are the result of high level input […]

Pre-insolvency or restructuring professionals – “Pifors”

At a conference held on 24 March by the QUT Commercial and Property Law Research Centre, a presenter, Dr Georg Kodek, explained ideas being proposed by the EU in implementing a Restructuring Directive (directive) for its members states. That directive follows on from a conference and report in mid-2016, in both of which QUT was involved.[1] One such proposal, […]

The gender profile of the insolvency profession: occupational segregation?

Would you like to study the question of gender balance in the insolvency profession? That topic is the subject of a call from the QUT School of Accounting for students at a Masters or PhD level interested in researching the issue. As QUT explains, given the advances in representation by women in the accountancy profession generally, […]

Insolvency law’s unfortunate ‘split commencement’

The unfortunate decision of the government to split the commencement date of the ILRA 2016 has created confusion, compounded by apparent difficulties in the government and law publishers to provide accurate point in time legislation. In retrospect, it would have been better to proceed with say a 1 June 2017 commencement date, if the profession […]

Cross-border insolvency – foreign judgments and enterprise groups

I earlier reported on my December 2016 attendance in Vienna, on behalf of LAWASIA, and UNCCA, on the two model laws that UNCITRAL Working Group V (Insolvency) has been drafting. Each proposed model law has the potential to provide significant assistance in cross-border insolvencies. This is an extract from a longer commentary, which, for those […]

Cross-border insolvency – recognition of insolvency judgments; enterprise groups – UNCITRAL Working Group V, Vienna 2016-New York 2017

I earlier reported on my attendance in Vienna, on behalf of LAWASIA, and UNCCA, the United Nations Commission on International Trade Law [UNCITRAL] session of Working Group V (Insolvency Law) from 12-16 December 2016. WGV is working on two model laws, each of which has the potential to provide significant assistance in cross-border insolvencies. The following provides a more principles-based […]

Senator John Williams – a driving force behind our insolvency reforms

Senator John Williams is familiar to us in the insolvency profession as the one politician who has had a particular focus on the operation of our insolvency regime and the conduct of its practitioners. Senator Williams was good enough to speak with me about the new insolvency reforms, under the Insolvency Law Reform Act 2016, some […]

INSOL Academics 2017

The INSOL Academics Colloquium was held over the weekend of 18-19 March 2017 in Sydney. The session covered a wide range of topics relevant to Australian practitioners and academics and policy makers. These included the potential impacts of Brexit on UK insolvency; the impact of the EU changes on Australian creditors; comparative creditor protections in […]

“Two issues of importance in insolvency practice” – holding DOCAs upheld; pre-appointment conflict claim rejected

What the WA Supreme Court described as the two issues of importance in insolvency practice were whether holding DOCAs (deeds of company arrangement) were a legitimate process in the restructuring of an insolvent company under Part 5.3A of the Corporations Act; and the extent permitted of pre-appointment meetings of administrators with the board of the company without compromising their independence […]

Unpaid super, again; single touch payroll; penalties, and more

The Senate Economics References Committee is conducting another inquiry into the problem of the non-payment of superannuation by employers of their employees’ superannuation.  To state the problem is to prompt a ready answer, that it should not be left up to the employer to pay the super, rather the super should be extracted at source […]

The decision in Sakr Nominees – keeping it in proportion

The NSW Court of Appeal has disposed of authority that sought to apply percentage based calculations to liquidators’ remuneration in particular cases. The Court has restored the orthodox position and confirmed existing principles on other aspects of remuneration: Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38.  These accord […]

Appeal decision in Sakr Nominees – remuneration of liquidators

A test case decision in Sakr Nominees from the NSW Court of Appeal will be given tomorrow 9 March at 10.15am EST. In my commentary on 12 January 2017, I said that the decision of Justice Black in PrimeSpace Property [2016] NSWSC 1821 (15 December 2016) might be seen as a worthy draft of the Court […]

ASIC’s regulation of unlawful phoenix activity – report 513

ASIC’s latest enforcement report – REP 513 ASIC enforcement outcomes: July to December 2016 – says up front that it has a focus on “rogue insolvency practitioners and others who facilitate serious illegal ‘phoenix’ behaviour and improper transactions in the face of insolvency”. Having opened with that, the report does not quite substantiate the existence […]

Australia’s first/worst insolvency reforms in many years – but she’ll be right….

Australia has implemented its first major insolvency reforms in many years but rather than being seen as an achievement they are regarded by many as being populist and over-regulatory. They have in fact been described by a senior insolvency academic as the worst insolvency reforms in his thirty year experience. The new law The Insolvency Law […]

Liquidators working overseas – how are they regulated? INSOL Academics 18-19 March 2017

I am pleased to be presenting at the INSOL Academics’ Group Colloquium in Sydney, being held on 18 and 19 March 2017. Its program is here. The colloquium is chaired by Professor Rosalind Mason, of Queensland University of Technology, QUT.  My paper*asks: whether or how an Australian liquidator conducting investigations and proceedings overseas as a “foreign representative” under […]

Liquidators as the last in line – the Insolvency Law Bulletin

In an article entitled “Last Man Standing” in the Insolvency Law Bulletin, I have addressed the question of regulators tending to impose liability or responsibility on an insolvency appointee for past or further responsibilities of the insolvent company. As a court said, this can be an issue because after a corporate collapse, the liquidator is the […]

QUT Law – Current Issues in Insolvency Law: Global Perspectives – 24 March

The QUT Commercial and Property Law Research Centre is hosting international speakers and QUT academics at this session on Friday 24 March 2017, at QUT Brisbane. The seminar provides an opportunity to hear the latest developments in European cross-border insolvency and restructuring law, as well as important sessions on the regulation of the Australian profession, and on […]