Coronavirus safe harbour – beware the claytons waterfall in s 588GAAA
It is interesting to now see the clear limitations the government has placed on the protections offered by the COVID-19 ‘safe harbour’ reforms, in the latest extension of time of the operation of s 588GAAA Safe harbour–temporary relief in response to the coronavirus to 31 December 2020. The limitation is that unless the company in question […]
“industry codes with their precepts, guidance and aspirational verbiage cannot dictate the proper construction and application of the relevant statutory provisions”
Soft law in Australia takes a rather strict approach in assessing the independence of insolvency practitioners, more so than, for example, the UK: for a recent example, see Re Nationwide Accident Repair Services Ltd & Ors [2020] EWHC 2420 (Ch), a pre-pack. But as I have said, the law itself as applied by the Courts […]
Duties of directors of insolvent companies – New Zealand Supreme Court decision
The NZ Supreme Court has given a significant decision on the duties of directors in the face of their company’s financial difficulties. Comparison is made by the NZ government with Australia’s insolvent trading law; a decision in Mainzeal is pending; and there is a proposal for a NZ safe harbour. When Australia was considering […]
Fightback! SMEs get a new restructuring tool
The federal Treasurer has announced a new restructuring regime for struggling small to medium enterprises (SMEs)[1] which adopts a ‘debtor-in-possession’ model for companies owing less than $1 million. There is already much comment about the government’s announcement of major changes to Australia’s corporate insolvency laws. We don’t propose to comment on them in detail – […]
Under the Trans-Tasman Mutual Recognition laws, licensed New Zealand insolvency practitioners should be able to practise in Australia …
New Zealand has a new insolvency practitioner regulation regime which commenced on 1 September 2020. The regime has processes allowing Australian registered liquidators to be registered and to practise in New Zealand. See my Insolvency licensing bodies confirmed for New Zealand’s new regulatory regime I am not aware of anything issued in Australia as to […]
A health check of the Australian corporate insolvency system – updated
Commentary following issued in April 2020 is reissued in September 2020 in light of the reports that a significant proportion – close to 55%* – of the insolvency industry is on government assistance. While the collapse in the numbers of insolvencies is a reason, Macquarie Bank’s Report on the health of the insolvency practitioner industry […]
Insolvency protections extension to 31 December 2020
The Corporations and Bankruptcy Legislation Amendment (Extending Temporary Relief for Financially Distressed Businesses and Individuals) Regulations 2020 serve to extend the existing insolvency protections to the end of Thursday 31 December 2020. This includes extending the COVID-19 safe harbour protection to that date.
UK’s plan to give great access to corporate data, beneficial ownership etc
In What has happened to the proposed beneficial ownership of shares register? in February 2020, I asked what has happened to the Australian government’s ”First Open Government National Action Plan” of 2016, including a proposed beneficial ownership of shares register? It seems not much? The UK Meanwhile, the UK government has given its positive response […]
A 2012 committee of creditors found in 2020 to be invalidly appointed
In May 2012 a national Australian transportation company was put into liquidation and on 2 July, a meeting of creditors was held which purported to appoint a committee of inspection (creditors) and specify the members of the COI. ‘Purported’ because over 8 years later, the appointment of the committee has been found to be invalid: […]
A “private arrangement” between a liquidator and the Tax Commissioner
The Commissioner of Taxation has purchased a litigation claim from a liquidator, on what terms we are not permitted to know. One of the reforms introduced in Australian in 2017 was to allow liquidators and trustees to assign causes of action to a third party, including a creditor, for value: s 100-5 Schedules. The idea […]