Insolvency and related law and policy, and more

Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related issues, in Australia and internationally. He has a strong law and policy background, is independent of any connections, and his views are his own. He gives no legal advice. 

Cross-border insolvency hearing between Australia and New Zealand

The Federal Court of Australia requested the High Court of New Zealand to help it jointly hear applications on 18 February relating to the pooling of various funds held by the Australian incorporated parent (Halifax AU) and a New Zealand incorporated subsidiary (Halifax NZ). A ‘letter of request’ to that effect was issued by the Federal Court on 11 February 2020.[1]

The request was granted, and the joint hearing between Gleeson J (FCA) and Venning J (NZHC) took place on 18 February 2020, by video-link.

The Courts added various defendants to the proceedings to represent various groups, with others granted leave to make any application to be added as a defendant or granted leave to be heard. Any applications are listed for hearing on 3 April 2020.

The liquidators were granted leave to have subpoenas issued to a number of persons.

It is said to be the first time that a joint hearing of the two courts has been held.

The Federal Court has recently re-issued its practice note on cross border insolvency[2] concerning cooperation under Article 25 of the Model Law between the Court and foreign courts and foreign representatives. The manner of cooperation appropriate to each particular case is said to depend on the circumstances of that case. The practice note refers to the use of agreements approved by the Court in the particular proceeding, guided by various international guidelines.[3]

However, this joint hearing in Halifax is being arranged and heard under the letter of request process rather than the Model Law. What guidelines apply under that minimalist approach may become apparent at the subsequent hearings.

[1] See s 581 Corporations Act 2001. 

[2] 31 January 2020

[3] Guidelines for Communication and Co-operation between Courts in Cross-Border Insolvency Matters and the Modalities of Court-to-Court Communication, both of the Judicial Insolvency Network; and Practice Guide on Cross-Border Insolvency Co-operation 2009 of UNCITRAL

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