Surveys of Australian insolvency and turnaround professionals

An early survey of insolvency professionals in Australia in relation to the impact of COVID-19 reveals an apparent contradiction, that insolvency firms, whose work depends on businesses struggling or failing, are themselves are being adversely impacted by the economic conditions. There are reported to be significant falls in insolvency work, insolvency firms registering for the […]

Insolvency practitioner independence – law and practice

One of Australia’s insolvency bodies, ARITA, has issued a reminder to its members about the need for liquidators to maintain their independence, saying that ‘it’s the law’ and that the recent COVID-19 reforms in Australia ‘do not impact the legal position’.[1] The law and practice don’t always coincide. +++ Australia has always taken a strict […]

ARITA’s ‘bushfire and COVID-19’ request to government for funding

ARITA – the main Australian industry body representing insolvency practitioners and lawyers – has asked the government[1] for funding to enable it to address various issues in corporate insolvency highlighted by the current crisis. ARITA raises aspects of long held concerns[2] of myself and Professor Jason Harris which we raised again this week, our views […]

The proposed reinvigoration of the UK’s business rescue culture through ‘recalibration of the balance of power’ – some steps too far for Australia?

A recent academic article from the UK has reviewed proposed restructuring reforms announced by the government in August 2018, although yet to be implemented. These comprise a minimum 28 day moratorium for the debtor on creditors’ claims, a debtor-in-possession (DIP) arrangement with a monitor role rather than that of an insolvency practitioner (IP), a restructuring […]

ARITA’s response to the Ombudsman’s small business insolvency inquiry

ARITA has offered a 60-page submission to the Ombudsman’s inquiry, which, given the quality of the inquiry, may be rather excessive but is nevertheless useful. It may also be seen as surprising, given ARITA’s criticism of the Ombudsman’s inquiry, which, as ARITA has explained, was announced only 2 months after ARITA had written to all […]

Why didn’t someone do something? the obligation to whistleblow

There is a current focus on whistleblowing as being one means whereby unlawfulness can be controlled. But what can be a voluntary and sometimes difficult choice to whistleblow may in fact constitute a legal or professional obligation to do so. Whether that be formally ‘whistleblowing’, the same purpose is achieved, the reporting of unlawful conduct. […]

Dealing with MSE insolvency – UNCCA Australia

Earlier in December 2019, LLM candidate and graduate lawyer Samantha Pacchiarotta and final year law student Cassandra Heaslip attended Insolvency Working Group V’s 56th session in Vienna on behalf of LAWASIA and Australia’s UNCCA, the UNCITRAL Co-ordination Committee for Australia. The topic was how to deal with micros to small insolvencies.  Together, they had the […]

Small businesses and their financial difficulties – the Ombudsman’s inquiry

A discussion paper[1] issued on 20 December from the Insolvency Practices Inquiry of the Australian Small Business and Family Enterprise Ombudsman examines the financial difficulties of small business and the impact of an insolvency administration on them. Feedback is sought on what would be a ‘best practice framework’ for both small businesses moving towards insolvency […]

Anti-competitive conduct in the insolvency industry?

A new code of conduct for insolvency practitioners in Australia now proscribes illegal anti-competitive conduct, unusual for an industry code but no doubt included for good legal reasons, given the last competition review of insolvency was in 1992. Professionals can have the knowledge and authority to significantly influence, often in their favour, the framing of […]

‘A good idea’ – assignment of a liquidator’s recovery rights

A liquidator has transferred, with court approval, potential recovery claims to the ATO, as the major and only creditor in a liquidation. The law concerning assignment of claims is however said to remain uncertain despite changes made to facilitate such transfers. In the case in hand, the ATO is owed $5.4m. The company – Anatax […]