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Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

Traill’s 16th Insolvency Conference 1-2 May – a wrap-up

A wide range of legal and practice issues concerning the current insolvency law changes under the Insolvency Law Reform Act 2016 were explained and discussed on the second day of the Traill Insolvency Conference, including how to assess reasonable requests for information, what notice must be given to creditors within the opening weeks of the insolvency, assessments of the sale of voidable claims, handling a lack of transparency in professional disciplinary processes, opening bank accounts, and responding to creditor’s directions and votes for removal. The level of fees and indemnities that may be sought from ASIC and other government agencies to administer insolvencies was also debated. 

Suggested precedents necessary to attend to various statutory requirements and checklists to ensure that various legal criteria are covered in decision making are being made available to those who attended.

Disappointingly, ASIC was unable to attend the conference but the time was well made up with what was a well received and interactive debate on the safe harbour and ipso facto reforms. The panel input of one of the original Harmer Committee commissioners, whose report cemented insolvent trading in place, a senior restructuring professional and a banker prompted a lively debate that was invaluable in testing the processes and parameters of what is proposed. The range of talents required to give the ‘appropriate advice’ was well debated.

Ipso facto concerns were highlighted in the debate with feedback from both aspects of the reforms already conveyed to those in government considering the current reforms.

Too briefly and without justice to the content and analysis, the conference also covered the court decisions in Sakr Nominees, Swan Services, BCI Finances, CMI Industrial, Amerind, Akron Roads, a number of recent bankruptcy decisions, Forge, s 420A, PPSA, Linc Energy, several recent voidable transaction cases, Central Cleaning, and Asden Developments.  The state of the restructuring market and the opportunities and challenges for insolvency practitioners was the subject of an interesting debate.

A day of PPS training was an optional extra, today, provided by a top level team from Herbert Smith Freehills.

What with imminent announcements in bankruptcy reform, we were asked to pencil in 6 December 2017 for a personal insolvency conference, and March 2018, for a 17th Traill insolvency conference which by that time will hopefully see all these reforms in place.

 

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Rosie Traill’s Annual Insolvency Conference – her 16th, next Monday and Tuesday 1-2 May, in Sydney – comes fortuitously at a time when we are between insolvency reforms just started, others imminent, and more yet to be announced, along with developing case law and changes in focus for the professions. 

Court decisions in Amerind and CMI, Swan Services and Forge, Linc Energy and Kojic are some covered in the opening sessions – pending any appeals – followed by questions whether safe harbour will cause a movement away from formal insolvencies, to whom, and under what standards of conduct, with accountants’ new code obligations raising some issues. 

The environment is a sensitive topic, more so when companies collapse with their land contaminated, which the liquidator must then trepidly enter.  CORA, Linc and Redwater are the terms and names.  

With constant pressure on banks, the Traill conference then moves on to receivers’ selling under s 420A without advertising, water rights, GST, on-line-auctions and more, along with recommendations of the need to ‘reduce the perceived conflict of interest of investigating accountants subsequently appointed as receivers’.  

Enough then to mention the acronym PPSA and cases name of Power Rental, Forge, Onesteel and Accolade Wines, being only teasers for the PPSA day long specialist workshop on the Wednesday 3 May, conducted by Herbert Smith Freehills.

Bankruptcy has been the ‘golden child’ for the new ILRA law reform so we should listen closely to its precepts when the “best of bankruptcy” is presented.  Insolvent transactions are always a ‘need to know’, more so that they can now be sold off for others to pursue, under section 100-5.  The vagaries of evidence and how it is accepted by judges are always hard to anticipate, in particular when parties rely on the pop psychology of the science of witness’ memory. Sakr Nominees is another key term of the times in remuneration, the latest INSOL report putting our own issues in context.  MSMEs also now have an international law reform focus, with zombie companies receiving attention.     

But nothing in the world compares with our Insolvency Law Reform Act, and its 400 word definition of reasonable, its judicial spoon feeding, and its Kafkaesque processes, its vexatious invites, and with casual whistleblowing thrown in.  But there are good parts, and none of it is so extraordinarily complex that an instructive session can’t fix.

Akron Roads leads to many issues, including bankruptcy, and we also look at a practitioner’s breach of corporate duties. And liquidators’ liens always raise attention.

A state of the art market financiers panel will have a few things to say about market dynamics, new avenues for advisers, and some high profile cases, and with some anticipation of others, and possibly with some unhappy comments about safe harbour.

Then there is the famous gala dinner ….

Contact details here.

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