ASIC’s report on small business corporate restructurings under Part 5.3B

I am dubious about many of the outcomes touted for insolvency “restructurings”, or at least without the negative outcomes reported as well, to put the business restructuring in full perspective.   Court decisions on challenges to deeds of company arrangement are useful for the detail, whatever the legal result.

Numbers of small business corporate restructurings under Part 5.3B of the Corporations Act are said to be increasing, but to what effect?  As much as we know it is usually from reports by the insolvency firm involved giving a rosy picture of the insolvency law outcome …. which invariably does not say whether the company successfully resumed trading and lived happily, even if for the moment, or whether it was a mechanical exercise to dispose of debt.

I am therefore pleased to see that in its submission to the PJC inquiry into corporate insolvency, ASIC reports [191] that it was

“in the process of analysing outcomes of finalised restructuring plans when this inquiry was announced [in October 2022] and will issue further information on the restructuring process; including the amount owed to creditors, dividends paid to creditors and the remuneration of restructuring practitioners when this analysis is completed”. 

That report will be useful but it might also step outside the narrow insolvency focus and report what happened to the business in the process, even accepting that Part 5.3B has a more limited emphasis on business survival than Part 5.3A.  ASIC might also usefully report on the extent to which guarantees are pursued by creditors against directors’ personal assets, leading to the directors’ loss of assets or possible bankruptcy, noting that Part 5.3B gives directors no on-going protection.    

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