Restructuring and insolvency in Australia: overview

A Q&A guide to restructuring and insolvency law in Australia.

The Q&A gives a high level overview of the most common forms of security granted over immovable and movable property; creditors' and shareholders' ranking on a company's insolvency; mechanisms to secure unpaid debts; mandatory set-off of mutual debts on insolvency; state support for distressed businesses; rescue and insolvency procedures; stakeholders' roles; liability for an insolvent company's debts; setting aside an insolvent company's pre-insolvency transactions; carrying on business during insolvency; additional finance; multinational cases; and proposals for reform.

To compare answers across multiple jurisdictions, visit the Restructuring and insolvency Country Q&A tool.

This Q&A is part of the global guide to restructuring and insolvency law. For a full list of jurisdictional Q&As visit www.practicallaw.com/restructure-guide.

Scott Taylor, Taylor David Lawyers
Contents

Forms of security

1. What are the most common forms of security granted over immovable and movable property? What formalities must the security documents, the secured creditor or the debtor comply with? What is the effect of non-compliance with these formalities?

Personal Property Securities Act 2009

The Personal Property Securities Act 2009 (Cth) (PPSA) came into effect in 2012, having Australia-wide jurisdiction. The effect of this legislation was to streamline the process for dealing with the registration of security interests of personal property. This form of security applies equally to movable and immovable property, subject only to the clarification that the property must be personal property (importantly, it does not apply to real property).

The legislation defines a security interest as an interest in personal property provided for by a transaction that, in substance, secures payment of performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property).

The legislation also provides a non-exhaustive list of the types of security encompassed by the above definition, which include the following:

  • Fixed charge.

  • Floating charge.

  • Chattel mortgage.

  • Conditional sale agreement (including retention of title).

  • Hire purchase agreement.

  • Lease of goods.

If a transaction gives rise to an interest that fits within the broad definition above, then the processes set out by the legislation are required to be met if the security is to be enforceable against third parties. If there is no formal agreement in place, the substance of the transaction is taken into account and a security interest can still be considered to exist.

These processes include registration on the Personal Property Securities Register (PPSR) within a certain time frame of the transaction date itself. This is generally twenty business days' (but there are specific exemptions that exist that can reduce the time frame).

In an insolvency context, if a security interest did exist by virtue of a transaction and the processes required by the PPSA were not carried out, then the secured property can vest in the liquidator or administrator irrespective of title.

A further form of security created by the PPSA is the Purchase Money Security Interest (PMSI) which affords a secured creditor a super priority over all creditors in relation to specific secured property (see below, Movable property).

Exemptions to the PPSA include transactions for less than A$5,000 so as not to impose onerous implications on those not engaged in commerce. However, in all cases, registered security interests take priority over non-registered security interests.

Priority is afforded in terms of timing of the registration (first in time gets first priority). PMSI security holders will be afforded a super-priority over specific assets subject to the security interest (see below, Movable property).

Creditors who hold security over circulating assets (formerly known as a floating security) can find themselves subrogated to the rights of priority unsecured creditors in a liquidation (for example, employees with unpaid entitlements) if there are insufficient assets in the liquidation to pay these priority unsecured creditors in full.

Immovable property

Common forms of security and formalities. Common forms of security are as follows:

  • Mortgage.

  • Lien.

  • Pledge.

Mortgage. Mortgages deal with interest in real property. In certain circumstances a mortgage can be equitable, where no registration takes place, or legal once it becomes registered. The registration requirement is referred to as the "Torrens" title regime. Torrens legislation differs from state to state within Australia.

The effect of the Torrens title legislation is to create a statutory estate in real property dependent on registration. However, this is not to say the law does not recognise equitable claims.

Equitable interests can be registered over a title by way of a caveat, effectively publically recording the interest claimed. For example, a caveat can be utilised when a party contributed to the purchase price of real property and did not record the contribution formally through a loan document or mortgage.

The benefit of registration is that it affords a creditor priority over unregistered dealings (except in the case of fraud or negligence). Additionally, early registration affords priority over others on the title. Priority is afforded in the order of registration. Non-compliance with the requirement for registration does not result in an unenforceable interest. However, the non-compliant creditor will likely take their interest subject to the interest of the creditors that were compliant.

Mortgagees can, between themselves, agree to vary the priority that appears on the titles. This can simply be achieved via a deed of priority, a document which does not need to be registered.

Effects of non-compliance. See above, Mortgage.

PPSA security interest. See above, Personal Property Securities Act 2009.

Effects of non-compliance. See above, Personal Property Securities Act 2009.

Lien. A statutory lien is technically encompassed by the PPSA (subject to quantum) (see above, Personal Property Securities Act 2009). However equitable liens, which derive from general principals of equity, can still exist. Effectively, a lien operates by enabling a party to retain possession of the "encumbered property" until a debt incurred is satisfied. Generally, there is no right to sale of the encumbered property; the lien only applies so as to withhold possession until a debt is satisfied.

A registered security interest takes priority over a lien.

Effects of non-compliance. See above, Lien and Personal Property Securities Act 2009.

Pledge. A pledge is very similar to a lien with the key distinction being that the secured creditor holds the right of sale of the secured property. It is likely that this form of security will be encompassed by the PPSA (subject to quantum and the business of the secured party).

Effects of non-compliance. See above, Lien and Personal Property Securities Act 2009.

Movable property

Common forms of security and formalities. With the exception of mortgages over real property, the securities mentioned above apply equally to movable property (see Immovable property).

PMSI. A PMSI is a security interest provided by the PPSA. It affords a secured creditor a super priority over all creditors in relation to specific secured property. More onerous obligations are imposed on the secured party in order to satisfy the requirements of the PPSA. For example, if a grantor of a security interest was granting the secured party a PMSI of stock that the secured creditor was providing to the grantor of creditor (retention of title arrangement), then the secured creditor would need to have registered the security interest on the PPSR at the time the grantor was granted possession of the property. Failing this, the PMSI super-priority would not be afforded. The security interest would be downgraded to ordinary secured creditor status (with the ordinary rules of priority applying). In all other cases regarding PMSI interest (those not relating to inventory), the security interest must be registered within 15 business days to be afforded the super priority.

The registration itself would be required to include a description of the secured property otherwise it may risk being downgraded.

Effects of non-compliance. See above, PMSI.

PPSA security interests in motor vehicles. Motor vehicles and other similar assets within the same class are required to be identified by their serial number (in the case of motor vehicles, by their VIN) in order to be sufficiently identified on the PPSR.

Effects of non-compliance. See above, PPSA security interests in motor vehicles.

 

Creditor and contributory ranking

2. Where do creditors and contributories rank on a debtor's insolvency?

On a debtor's insolvency, creditors and contributories are ranked in the order provided under the Corporations Act 2001 (Cth). The order is as follows:

  • Secured creditors (subject to certain requirements, see below).

  • Expenses in a liquidation and or administration.

  • The petitioning creditors' fees in a winding up context.

  • Outstanding employee entitlements.

  • Unsecured creditors.

  • Shareholders.

Subject to the nature of the administration, secured creditors that hold a circulating security interest may need to subrogate their security to outstanding employee entitlement interests. If this is the case, those secured creditors will take their interest after any outstanding employment entitlements have been paid.

Recoveries made during the administration that would not be payable to secured creditors (for example, recoveries from voidable transactions) are payable to secured creditors whose rights have been subrogated.

 

Unpaid debts and recovery

3. Can trade creditors use any mechanisms to secure unpaid debts? Are there any legal or practical limits on the operation of these mechanisms?

A creditor wanting to be secured can register their security interest on the Personal Property Securities Register (PPSR) or at the titles office in relation to real property.

However, regarding PPSR registrations, the enforceability of the security will be affected by the timing requirements imposed by the legislation. If the creditor is outside the applicable time limits, the security will be unenforceable.

Additionally, the parties may enter an agreement with the intention of converting an otherwise unsecured debt into a secured one (with the view of "restarting" the time frame imposed by the Personal Property Securities Act 2009 (Cth) (PPSA) and otherwise formalising an informal credit relationship). In this situation, the secured creditor runs the risk of being sued by a liquidator under the voidable transaction provisions of the Corporations Act 2001 (Cth) (see Question 10).

Similarly, in relation to real property, converting a previously unsecured debt into a secured debt without consideration may see the secured creditor fall foul of the voidable transaction provision after the appointment of a liquidator.

 
4. Can creditors invoke any procedures (other than the formal rescue or insolvency procedures described in Questions 6 and 7) to recover their debt? Is there a mandatory set-off of mutual debts on insolvency?

Receivership

Secured creditors can appoint a receiver over the secured assets of the debtor company under the terms of the relevant security document. If a lower ranking secured creditor appoints a receiver over property that is also subject to the security interest of another higher ranking secured creditor, then the higher ranking secured creditor can appoint another receiver over the top of the first.

The scope of the appointment of a receiver will be subject to the nature of the security interest. This is an important consideration as the receiver can be sued for conversion if they deal with assets that they are not entitled to deal with. Similarly, subject to the security documentation, a secured creditor can take possession of the secured property. In doing so, they must comply with the Personal Property Securities Act 2009 (Cth) (PPSA) or the relevant Land Titles legislation which varies between states. This is occurring more regularly due to the costs associated with the appointment of a receiver.

There are a number of specific appointments afforded under the Corporations Act 2001 (Cth). These are as follows:

  • Receiver. A receiver receives income from an asset and may convert the asset into cash by sale but does not buy assets or generally manage the business.

  • Receiver and manager. A receiver and manger can buy or sell assets, as well as receiving income and paying expenses. The role also requires the management of the assets over which he/she has been appointed, for example if appointed to a trade on business.

A receiver can be appointed simultaneously with a liquidator, and in certain cases, an administrator.

Set-off

In an insolvency context, there is a right of set-off afforded to creditors that have a mutual debtor-creditor relationship. This right extends to voidable transaction recoveries.

The right to set-off does not exist for creditors that have an actual knowledge of the insolvency of the debtor at the time of providing credit.

 

State support

5. Is state support for distressed businesses available?

There is no specific state support for failing companies.

However, significant state creditors such as the Australian Taxation Office do have the power to compromise debts, enter into payment arrangements and provide moratorium periods.

 

Rescue and insolvency procedures

6. What are the main rescue/reorganisation procedures in your jurisdiction?

Voluntary administration

Voluntary administration is an insolvency procedure provided under the Corporations Act 2001 (Cth).

Objective. The purpose of a voluntary administration appointment is to maintain the status quo of a company whilst its affairs are reviewed by the independent administrator.

Initiation and substantive tests. The process does not require shareholder approval, and commences when the director(s) of the company suspects that the company may not be able to pay its debts as and when they fall due. This enables any director(s) who may be at risk of insolvent trading (which carries personal liability for directors) to mitigate their liability. Additionally, the courts have held that if insolvency is likely, director(s) begin to also have a duty to the creditors of the company, insofar as insolvent trading is concerned. The voluntary administration process also addresses this point.

Once appointed, the administrator effectively takes control of the company, assuming the role and personal liabilities of the director. If the administrator chooses to trade on the business of the company, they also assume the trading liability for the period of their appointment.

Consent and approvals. A voluntary administrator is usually appointed by the company directors, after they decide that the company is insolvent or likely to become insolvent.

Supervision and control. The administrator can be supervised by the court (on application by stakeholders, including both the creditors and administrator) and by the Australian Securities and Investment Commission (ASIC).

Protection from creditors. During the period of administration if no prior enforcement action has been taken, the company is afforded a moratorium from enforcement action being taken by all creditors. This includes secured creditors (unless they hold a security over all or substantially all of the company assets) and the landlord. However, if an application to wind up the company was already in process prior to the appointment, it may still result in a liquidator (separate to the administrator) being appointed to the company.

Length of procedure. Unless extended, the voluntary administration process usually lasts for about one month. During this period, the administrator will trade on the business and investigate the affairs of the company.

Conclusion. The administrator will convene a meeting of the creditors. The administrator will table a report outlining the affairs of the company and its viability to continue operating. In doing so the administrator will make a recommendation to creditors regarding the future of the company, specifically whether:

  • It should be returned to the directors.

  • It should be placed into liquidation.

  • A deed of company arrangement should be accepted (see below, Deed of company arrangement).

Deed of company arrangement (DOCA)

A DOCA is a formal payment arrangement proposed to creditors of a company by any party (the director or an arm's length third party).

Objective. The objective of a DOCA is to allow for a formal restructuring of companies facing financial hardship.

Initiation. The process is initiated by a creditor resolution and is binding on all creditors of the majority in number and value who vote in favour. The chairperson (usually the administrator) has the deciding vote and will usually exercise it in the same way he/she recommended in the report to creditors. The resolution does not bind a secured creditor who does not vote.

Consent and approvals. The administrator can vary the deed slightly if necessary, however, for substantial amendments, creditor approval is required.

Supervision and control. During the term of the DOCA, the administrator also administers the deed, and ensures compliance with the DOCA. In the event of non-compliance, the company may be placed into liquidation.

Protection from creditors. The DOCA binds all unsecured creditors. However, the DOCA does not prevent a creditor who holds a personal guarantee from the company's director or another person taking action under the personal guarantee to be repaid their debt.

Length of procedure. If the creditors agree that the company should enter the DOCA, the company must sign the DOCA within fifteen business days of the creditor's meeting unless the court allows for a longer time. If the company do not sign the DOCA within the specified time period, the company will automatically go into liquidation with the voluntary administrator becoming the liquidator.

Conclusion. At the meeting of creditors, a resolution will be passed regarding the company, specifically whether:

  • It should be returned to the directors.

  • It should be placed into liquidation.

  • A deed of company arrangement should be accepted.

 
7. What are the main insolvency procedures in your jurisdiction?

Liquidation

The Corporations Act 2001 (Cth) provides for two types of winding up:

  • Voluntary winding up.

  • Compulsory winding up.

Voluntary winding up. A voluntary winding up can proceed as a members' voluntary winding up or alternatively, as a creditors' voluntary winding up. The effect of liquidation is that the assets of the company are collected, its debts are paid as far as possible, and any surplus is distributed to members.

Compulsory winding up. This is the winding up of the company through insolvency or another ground.

Objective. The objective of the compulsory winding up is to wind up the affairs of an insolvent company.

Initiation. A winding up application can be filed against a company by the company itself, a creditor, contributor, director, another liquidator or provisional liquidator of the company, or the Australian Securities and Investment Commission (ASIC).

Substantive tests. The court can order a company to be wound up on the basis that it is insolvent, that is, it cannot pay its debts as and when they fall due. The onus is on the applicant to prove this fact.

Consent and approvals. No other approval is required, once ordered by the court.

Protection from creditors. Once a liquidator is appointed, all enforcement action (with the exception of secured creditors) stops, unless leave of the court is granted.

Length of procedure. The application process usually takes between seven and 45 days. Liquidation begins once the court makes an order to wind up the company.

An official liquidation can last as long as necessary for a liquidator to complete his/her investigations and recovery actions. However, it generally lasts for between one to three years after a liquidator is appointed.

Supervision and control. Only liquidators with "Official Liquidator" status can accept court-appointed liquidations. Official Liquidators are officers of the court and have strict obligations imposed on them. Throughout the liquidation, they are within the supervision of the court and the ASIC.

Conclusion. Once concluded, a dividend is paid in the order of priority (see Question 2) and the company is deregistered.

Voluntary liquidation

A distinction is made in the Corporations Act 2001 (Cth) between voluntary liquidations commenced by creditors and those commenced by members (shareholders) of a company. In reality, the only distinction between each is a declaration of solvency from the directors.

Objective. The objective of voluntary liquidations is to afford those who have beneficial ownership of the company a cost effective mechanism for liquidating companies that are no longer able to pay their debts as and when they fall due, and in circumstances in which voluntary administration is not viable or necessary.

Initiation and substantive tests. In a member's voluntary liquidation, a director is required to provide the liquidator with a declaration of solvency to enable the orderly winding down of the company within twelve months. If a director fails to do this, the company proceeds as a creditor of the voluntary liquidation.

Consent and approvals. In order to appoint a liquidator the shareholders of the company must vote in favour. A special resolution is needed which requires more than 75% of shareholders to vote in favour of the resolution to appoint a liquidator.

Protection from creditors. Once a liquidator is appointed, all enforcement action (except for secured creditors) stops unless leave of the court is granted.

Length of procedure. Once commenced, a voluntary liquidation will be conducted in a similar manner to a court-ordered liquidation, with regard to obligations and timing. However, unlike court- ordered liquidations, a voluntary liquidator must hold meetings of creditors within the first week of appointment. There is usually no set time limit and the voluntary liquidation lasts as long as necessary to complete all tasks.

Conclusion. Once concluded, a dividend is paid in the order of priority (see Question 2) and the company is deregistered.

Receivership

Objective. A receivership enables a secured creditor to liquidate specific assets held by a company that their security attaches to. Unlike a liquidator, who has a duty to creditors as a whole to investigate the affairs of the company, a receiver simply has to cover assets and achieve the best possible price in doing so.

Initiation. A receivership can be commenced on an appointment by the secured creditor or by the court.

Substantive tests. In order to appoint, a secured creditor simply has to establish the debtor is in default of their security agreement. When dealing with the secured assets, the receiver must establish that the security agreement is attached to those assets.

Consent and approvals. The appointment of a receiver is a matter between the secured creditor and the receiver.

Supervision and control. The secured creditor supervises the receiver, and can also terminate their appointment at any time, as can the courts or the ASIC.

Protection from creditors. The company can continue to trade while the receivership in in operation. Ordinary trade creditors are not affected by the process directly.

Length of procedure and conclusion. The receiver can retire when they have exhaustively liquidated the assets subject to the security. The secured creditor can also terminate their appointment at any time. In some cases, the company will be unable to continue due to the extent of the security being enforced by the secured creditor. In these cases, a liquidator (or administrator) may be appointed to operate alongside the receiver.

 

Stakeholders' roles

8. Which stakeholders have the most significant role in the outcome of a restructuring or insolvency procedure? Can stakeholders or commercial/policy issues influence the outcome of the procedure?

Stakeholders

In Australia, insolvency law centres on the rights of creditors. Every significant decision made after the appointment must be decided by a creditors' vote.

Secured creditors can elect to be engaged in the process, although they can simply enforce the security interest to recover their costs and walk away.

Insolvency practitioners are granted significant discretion in relation to exercising commercial decisions. However, creditors are still able to apply to the court for directions in all forms of insolvency appointments. A key duty of the insolvency practitioner is the duty to act in the best interests of creditors as a whole. This further demonstrates the importance of the creditors in insolvency proceedings.

Influence on outcome of procedure

Employees who are creditors of the company (meaning they have gone without payment) are afforded the highest priority of the unsecured creditors, and are protected by the federal government. On application, the government will pay any outstanding entitlements to employees via the Fair Entitlement Guarantee Scheme (FEGS). The sole purpose of FEGS is to provide a payout to employees in circumstances of insolvency.

Employees who may be related to the company (for example, the spouse of a director) have a statutory limit on the amount that they can claim in an insolvency context.

Furthermore, a secured creditor who holds substantial security in the company's assets can often determine whether a deed of company arrangement (DOCA) should be successful. This is not simply due to their ability to vote, but to the secured creditors' ability to avoid voting.

 

Liability

9. Can a director, partner, parent entity (domestic or foreign) or other party be held liable for an insolvent debtor's debts?

Director

A director has a duty to the:

  • Company to avoid trading whilst insolvent and in circumstances of potential insolvency.

  • Creditors.

If a director fails to adhere to these duties, without a reasonable excuse, they can be held personally liable for the trading debt incurred by the company whilst insolvent. A creditor can seek permission from a liquidator to pursue such a claim directly. A director can reasonably defend such a claim if they can show that they took reasonable steps or were not managing the company at the material times.

Additionally, a director is personally liable for a number of taxation obligations, including superannuation. The Australian Taxation Office can pursue the director for this after the appointment.

Creditors often seek guarantees from directors before providing trading terms to companies. These terms are not avoided if the company becomes insolvent, and they can even be enforced as a company enters a deed of company arrangement (DOCA) (subject to the terms of the DOCA).

Partner

A partner is jointly and severally liable for the debts of a partnership. Partners will often attempt to mitigate liability through a partnership agreement.

Parent entity (domestic or foreign)

Parent entities (referred to as holding companies) control the shares of subsidiary companies and can be made liable for the same debts as a director in an insolvent trading context (see above, Director).

The parent entity's liquidator may recover from the corporation, as a debt due to the company, an amount equal to the amount of the loss or damage.

Such a claim can be reasonably defended if one of the following can be proved:

  • The parent entity and relevant director(s) had reasonable grounds to expect that the subsidiary company was solvent at the time of the debt.

  • A competent and reliable person was providing the information regarding the subsidiary company's solvency.

  • The director of the parent entity did not manage the company at the material times.

  • The parent entity took all reasonable steps to prevent the subsidiary company from incurring the debt.

 

Setting aside transactions

10. Can an insolvent debtor's pre-insolvency transactions be set aside? If so, who can challenge these transactions, when and in what circumstances? Are third parties' rights affected?

Voidable transactions

In a liquidation, a liquidator has the authority to make certain transactions void.

Generally, transactions with creditors during the six month period immediately before the appointment date are voidable. This period can be extended if the party to the transaction is related to the company.

There are a number of causes of action a liquidator can rely on including:

  • Preference payments.

  • Uncommercial transactions.

  • Unreasonable director- related transactions.

  • Voidable securities.

  • Security interests in favour of an officer of the company.

Preference payments. On a company's insolvency, an unsecured creditor is paid in preference to other creditors in the winding up of the company. This can occur in circumstances where the creditor is not paid in full.

Any transaction falling within the scope of a preference claim can be recovered by the liquidator for the benefit of unsecured creditors. Notwithstanding this, the set-off principle can apply to these claims to reduce the amount repayable by the creditor (see Question 4, Set-off).

The Australian Taxation Office can be sued for preference payments. However, the office may seek to be indemnified by the director of the company for the repayment of certain taxes that form part of the preference claims (these are the employee entitlement components of the claim).

Uncommercial transactions. Insolvent transactions that are considered to be "uncommercial" can be recovered by a liquidator for the benefit of unsecured creditors. To determine whether a transaction is uncommercial, the court looks to the benefit of the transaction to the company and also the benefit to the other party to the transaction. In some cases, the liquidator can look back ten years to recover transactions.

Unreasonable director-related transactions. This cause of action has similar criteria to uncommercial transactions (see above). Transactions that are uncommercial and with a director or a related party to a director (but not a related company) can be recovered by a liquidator.

Liquidators would generally seek to rely on this cause of action rather than an uncommercial transaction. This is because the insolvency of the company at the time of the transaction is not essential, and therefore the onus on the liquidators is less onerous.

Voidable securities. Liquidators can void unregistered security interests within twenty business days of the transaction date.

Would-be secured creditors can apply to the court to have this period extended, although this is rarely granted.

Security interests in favour of an officer of the company. Security interests registered on the Personal Property Securities Act 2009 (Cth) (PPSA) within six months of the date of liquidation, in favour of an officer, a former officer (within six months of the liquidation commencing) or a close associate of the officer can be made void by a liquidator.

Defences and mitigation by creditors

Creditors can defend voidable transactions (with the exception of voidable securities, and unreasonable director-related transactions) on the basis that they acted in good faith and had no reason to suspect insolvency at the time of the transaction, nor would a reasonable person in the same position.

 

Carrying on business during insolvency

11. In what circumstances can a debtor continue to carry on business during rescue or insolvency proceedings? In particular, who has the authority to supervise or carry on the debtor's business during the process and what restrictions apply?

There is no process for debtors to trade during an insolvency appointment. This is with the exception of the administration and deed of company arrangement (DOCA) procedures (see Question 6).

On a case by case basis, directors can enter into licence agreements with liquidators or administrators that enable them to trade during an appointment. However, this is the exception rather than the rule.

In the event a receiver is appointed, a business can continue to trade, subject to the interest of the secured creditor (see Question 4).

 

Additional finance

12. Can a debtor that is subject to insolvency proceedings obtain additional finance both as a legal and as a practical matter (for example, debtor-in-possession financing or equivalent)? Is special priority given to the repayment of this finance?

There are no special facilities allowing a debtor to seek finance during an insolvency appointment. The legal position is such that the insolvency practitioner would, in effect, be liable for the quantum of the loan.

Nevertheless, it is not uncommon for a related party of a company to seek finance to facilitate the deed of company arrangement (DOCA) or the purchase of assets from a liquidator.

 

Multinational cases

13. What are the rules that govern a local court's recognition of concurrent foreign restructuring or insolvency procedures for a local debtor? Are there any international treaties or EU legislation governing this situation? What are the procedures for foreign creditors to submit claims in a local restructuring or insolvency process?

Recognition

The Cross-Border Insolvency Act 2008 (Cth) was enacted following Australia becoming a signatory to the UNCITRAL Model Law on Cross-Border Insolvency 1997 (UNCITRAL Model Insolvency Law). Australian courts will recognise international insolvency matters provided they originate in a jurisdiction that is also a signatory. Additionally, Australian insolvency practitioners can apply to foreign jurisdictions, so as to be recognised during insolvency matters.

Creditors can also rely on this legislation so as to be recognised in Australia.

Concurrent proceedings

In concurrent proceedings, the Australian courts are required to co-operate as much as possible with foreign courts (Cross-Border Insolvency Act 2008 ( Cth)).

On a separate point, civil court procedure in Australia (which varies between states, and also at the federal level) provides that Australian courts can assist if a request is made in writing. This applies in an insolvency context as well as other areas of law.

International treaties

Australia has adopted the UNCITRAL Model Insolvency Law.

Procedures for foreign creditors

Foreign creditors can rely on the Cross-Border Insolvency Act 2008 (Cth) and the UNCITRAL Model Law on Cross-border Insolvency to apply to Australian courts for recognition. Once approved by an Australian court, the creditor will enjoy the same rights as Australian creditors in the same class.

 

Reform

14. Are there any proposals for reform?

There are currently no proposals for the reform of Australian insolvency laws.

 

Online resources

Federal Register of Legislation

W www.legislation.gov.au/

Description. The Federal Register of Legislation (Legislation Register) is the authorised government website for Commonwealth legislation and related documents. It contains the full text and details of the lifecycle of individual laws and the relationships between them. The Legislation Register is managed by the Office of Parliamentary Counsel in accordance with the Legislation Act 2003.

AustLII

W www.austlii.edu.au/

Description. AustLII is Australia's most popular online free-access resource for Australian legal information, serving the needs of a multitude of users with over 700,000 hits daily. AustLII is a joint facility of the UTS and UNSW Faculties of Law.

Supreme Court Library

W www.sclqld.org.au/caselaw/

Description. The Supreme Court Library provides access to decisions from Queensland Courts and Tribunals, via CaseLaw. Decisions are supplied by judges and magistrates and are published within 24 hours of receipt by the library.

NSW Caselaw

W www.caselaw.nsw.gov.au/

Description. NSW Caselaw was developed in 1999 to publish decisions for New South Wales courts and tribunals administered by the NSW Department of Justice. Decisions will generally be released to NSW Caselaw within 24 hours of delivery.

The Law Library of Victoria

W https://courts.sdp.sirsidynix.net.au/client/en_AU/llv/search/results?te=ILS&lm=LLV_JUDGMENTS

Description. The Law Library of Victoria (LLV) is a comprehensive resource for the judiciary and legal profession of Victoria. The LLV was established in 2014 to provide a comprehensive and sustainable resource for the judiciary and the legal profession.

The LLV contributes to the practice of law in Victoria by offering modern and ready access to legal resources and providing high quality and responsive legal information services.

Supreme Court of Western Australia Library

W http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf

Description. The Supreme Court of Western Australia provides access to decisions from the state courts and tribunals. Decisions are supplied by judges and magistrates and are published within 24 hours of receipt by the library.

Supreme Court of the Northern Territory Library

W www.supremecourt.nt.gov.au/decisions/

Description. The Supreme Court of the Northern Territory provides access to decisions from the state courts and tribunals. Decisions are supplied by judges and magistrates and are published within 24 hours of receipt by the library. The website is maintained by the Northern Territory Government of Australia 2008.

Supreme Court of South Australia Library

W www.courts.sa.gov.au/Judgments/Pages/default.aspx

Description. The Supreme Court of South Australia provides access to decisions from the state courts and tribunals. Decisions are supplied by judges and magistrates and are published within 24 hours of receipt by the library. The website is maintained by the Courts Administration Authority of South Australia.

Queensland legislation website

W www.legislation.qld.gov.au/OQPChome.htm

Description. The Queensland legislation website provides access to current legalisation, Acts as passed, bills as well as repealed legislation. Legislation on the website is authorised by the Parliamentary Counsel as follows:

  • All 2013 bills and legislation passed or as made.

  • All current reprints.

The website is maintained by the State of Queensland (Office of the Queensland Parliamentary Counsel) 2013.

New South Wales Government legislation website

W www.legislation.nsw.gov.au/#/

Description. The official New South Wales Government legislation website is provided by the Parliamentary Counsel's Office and contains:

  • In force legislation, including the ability to search or browse consolidated up-to-date Acts, regulations and planning instruments (including point-in-time versions).

  • Notification Gazette. This includes the official notification of new statutory instruments, planning instruments and NSW Government Gazettes As Made Acts, statutory instruments and planning instruments.

  • Bills.

Legislation on this website is generally authorised.

Western Australia legislation website

W www.slp.wa.gov.au/legislation/statutes.nsf/default.html

Description. The Western Australia legislation website provides access to current legalisation, Acts as passed, bills as well as repealed legislation. The website is maintained by the Government of Western Australia, Department of the Premier and Cabinet.

Statute Book repository

W www.legislation.vic.gov.au/

Description. Since 1 January 2011, authorised electronic versions of legislation are produced for each new Act that is enacted and each new Statutory Rule that is made after that date. These authorised electronic versions are available from this website from the Statute Book repository. The website is maintained by the Victoria State Government.

Northern Territory legislation database

W https://nt.gov.au/about-government/nt-legislation

The Northern Territory legislation database contains all the current consolidated Acts and subordinate legislation of the Northern Territory. The website is maintained by the Northern Territory Government.

Tasmanian legislation website

W www.thelaw.tas.gov.au/index.w3p

Description. The Tasmanian legislation website gives free public access to Tasmanian legislation. Acts that were in force as at 1 February 1997 are available in consolidated form and Acts passed after 1 February 1997 are available in as made and consolidated form. Statutory Rules made after May 1998 are available in as made and consolidated form. Point-in-time searching is available on Acts from 1 February 1997 and Statutory Rules from May 1998. All cross-references to Tasmanian legislation and history notes are stored as electronic hyperlinks. The website is maintained by the Tasmanian Department of Premier and Cabinet.

South Australia legislation website

W www.legislation.sa.gov.au/index.aspx

Description. The South Australia legislation website has been established to provide improved access to South Australian legislation and information about South Australian legislation, including information about the making, commencement, operation, variation or cessation of legislation and the making, commencement, operation, variation or cessation of other instruments made under legislation. The website is maintained by the South Australian Office of Parliamentary Counsel.



Contributor profiles

Scott D Taylor, Partner

Taylor David Lawyers

T +61 7 322 99 800
F +61 7 322 99 833
E s.taylor@taylor-david.com
W www.taylor-david.com

Professional qualifications. High Court of Australia, Queensland, Victoria, New South Wales, Western Australia, New Zealand, Solicitor; Advanced Certificate in Insolvency, issued by Australian Restructuring Insolvency & Turnaround Association (ARITA)

Areas of practice. Reconstruction and insolvency law.

Non-professional qualifications. LLB, Queensland University of Technology

Recent transactions.

  • Leading negotiations for an Australian based debtor with a New York Investment Bank for a US$220 million debt equity swap.
  • Successfully restructuring and turning around a wholesale fresh produce business with A$30 million turnover from a multi-million dollar deficit to a net profit.
  • Leading the successful restructure of a large Central Queensland-based mining services company, avoiding liquidation.
  • Acting for stakeholders in the Golden Heritage Golf Pty Ltd insolvency administration, owners of the Yarra Valley Lodge and Golden Heritage Golf Courses.
  • Facilitating negotiations to mitigate construction and operational losses for a US$330 million silver mine in Central America after the collapse of a global mining machinery manufacturer involving cross border issues between Europe, North and Central America, South East Asia, and Australia.
  • Advising the Administrators of Allied Brands Limited (Baskin Robbins) regarding the establishment of a creditors trust for re-listing on the ASX.

Languages. English

Professional associations/memberships.

  • Queensland Law Society.
  • Law Institute of Victoria.
  •  Law Society of New South Wales.
  • Law Society of Western Australia.
  • Australian Restructuring Insolvency and Turnaround Association (ARITA) (formerly the Insolvency Practitioners Association of Australia).
  • International Association of Restructuring, Insolvency and Bankruptcy Professionals (INSOL).
  • Turnaround Management Association.
  • Australian Institute of Company Directors.
  • Board member of Children's Hospital Foundation Queensland

Publications. In Bernstein, D, The International Insolvency Review 3rd edition, London, Law Business Research, 17-31 (2015)


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