Insolvency 2020

Last Updated November 19, 2020

Australia

Law and Practice

Authors



Gilbert + Tobin has a dynamic restructuring and insolvency group that is valued for its pragmatic, commercial and partner-led service. The award-winning team has extensive experience advising and acting in relation to disputes and applications arising in restructures and workouts, voluntary administrations, liquidations and receiverships. It advises banks, borrowers, investors and directors, as well as many leading insolvency practitioners in relation to all types of insolvency administrations.

COVID-19 and the Fall in Insolvencies

Recent months have seen the largest fall in corporate insolvency appointments in Australia recorded since the quarter ended September 2000.

The Australian Securities Investment Commission (ASIC) has reported a 42.6% decrease in corporate insolvency appointments in the quarter ended June 2020, when compared to the June 2019 quarter, and a 31.1% decrease when compared with the previous quarter. 

There have been decreases across most types of corporate insolvency appointments, with the largest declines in voluntary administrations, compulsory liquidations and creditors’ voluntary liquidations. However, receivership appointments have increased by 61%, year on year, in the June 2020 quarter. Of each of the formal appointments other than creditor or court led windings-up, director led appointments of voluntary administrators continue to be the most common.

This decline in insolvency appointments appears to be attributable to the COVID-19 temporary support measures introduced by the government. These measures, which have been extended to 31 December 2020, were introduced to support the continuation of businesses and jobs.

Accommodation and food services, construction, retail and financial information services are among the sectors most affected by COVID-19, and are expected to experience the largest volumes of insolvencies in the year ahead.

Changes in Credit Markets

As a result of tightening capital adequacy requirements, prudential standards, the COVID-19 pandemic, more conservative approaches to risk and increased regulatory intervention following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, banks are increasingly limiting their exposures across all sectors. This has the potential to open the Australian debt market to non-traditional lenders such as hedge and special situations funds, investment banks and alternative capital providers.

In Australia, the Corporations Act 2001 (Cth) (Corporations Act) governs corporate insolvency and restructuring. The Bankruptcy Act 1966 (Cth) (Bankruptcy Act) regulates personal insolvency. The aim of both regimes is to balance the interests of creditors and debtors.

The Corporations and Bankruptcy Legislation Amendment (Extending Temporary Relief for Financially Distressed Businesses and Individuals) Regulations 2020 extended the temporary insolvency relief measures contained in the Coronavirus Economic Response Package Omnibus Act 2020 until 31 December 2020.

Under the Corporations Act, there are various formal insolvency procedures available to Australian companies including:

  • receivership (private/court-ordered);
  • voluntary administration;
  • deeds of company arrangement (DOCA);
  • provisional liquidation;
  • liquidation (voluntary/involuntary and solvent/insolvent); and
  • creditors’ schemes of arrangement (court-sanctioned).

Solvent liquidations and schemes of arrangement are commonly used as "solvent" restructuring tools.

Although companies are not obliged to initiate a formal insolvency process, directors usually do so to avoid personal liability for insolvent trading. A director may face civil or criminal liability where they knew, or had reasonable grounds for suspecting, that the company was insolvent or would become insolvent when the debts were incurred.

However, Sections 588H(2) and (5) of the Corporations Act provide that directors will not be liable if it is proved that, at the time the relevant debt was incurred, they had reasonable grounds to expect (and did expect) that the company was solvent (and would remain solvent even if it incurred that debt), and took all reasonable steps to prevent incurring the debt.

Directors may also look to rely on the "safe harbour" defence. Under Section 588GA, a director will not be liable for debts incurred by a company while it is insolvent if “at a particular time after the director starts to suspect the company may become or be insolvent, the director starts developing one or more courses of action that are reasonably likely to lead to a better outcome for the company” than the immediate appointment of an administrator or liquidator. The safe harbour, however, will not apply in certain circumstances, including where, at the time the debt is incurred, employee entitlements and tax reporting requirements are not up to date (Section 588GA(4) of the Corporations Act).

Compulsory Liquidations

A creditor can seek to initiate a winding-up of a company (a compulsory liquidation) by court order. A creditor (or other eligible applicant) must demonstrate that the company is insolvent (for further commentary on the Australian test for insolvency, see 2.5 Requirement for Insolvency).

The court can presume insolvency in certain circumstances, including where a company has not paid a claim exceeding a prescribed amount following a written statutory demand in accordance with the Corporations Act. In response to the COVID-19 pandemic, the Australian government has enacted legislation providing temporary economic and other relief for financially distressed businesses for the period 25 March 2020 to 31 December 2020, which includes an increase to the threshold at which creditors can issue a statutory demand from AUD2,000 to AUD20,000 and an increase to the time debtor companies have to respond to the statutory demand from 21 days to six months. Where a debtor does not comply with the statutory demand, or seeks to set it aside, insolvency is presumed for the purpose of the winding-up application.

Other grounds for a court to issue winding-up orders include where it is "just and equitable" to do so or where a deadlock at shareholder or director level affects the ability to manage the company.

Certain other stakeholders (including shareholders, the company and ASIC) may also submit a winding-up application with the court.

Where the court appoints a liquidator, directors will no longer have any management powers and the company will generally cease to be a going concern. The liquidator will assume control of the company and will realise the company’s assets for the benefit of the creditors.

There are no material differences between a compulsory liquidation and a creditors’ voluntary liquidation (being a voluntary process commenced by members where the company is insolvent) once the liquidator is in control of the assets and affairs of the company.

Receivership

A secured creditor may appoint a receiver and manager pursuant to the relevant security document, where a company has defaulted and the security is enforceable. Far less common is a court-appointed receiver, where the appointment is made to preserve the company’s assets where it may not otherwise be possible to trigger a formal insolvency process.

The appointment of a receiver to the whole, or substantially the whole, of the company’s assets will often lead to, or closely follow, the appointment of an administrator by the directors. Both processes proceed in tandem. 

Voluntary Administration

A secured creditor with security over the whole, or substantially the whole, of a company’s assets may appoint an administrator as an alternative to receivership.

In respect of involuntary appointments, insolvency is a requirement for commencing court winding-up proceedings (noting, however, there are other grounds for winding up a company).

Insolvency is not a requirement for a secured creditor to appoint a receiver; or for a secured creditor with security over the whole, or substantially the whole, of a company’s property to appoint an administrator. In these circumstances, all that is required is an entitlement to enforce the security interest. 

Directors can only appoint an administrator if, in the opinion of the directors, the company is insolvent or likely to become insolvent.

The solvency test in Australia is the "cash flow" test. A person is solvent if they are able to pay all their debts as and when they become due and payable. A person who is not solvent is insolvent. 

Courts apply Section 95A of the Corporations Act liberally and will consider the operative commercial circumstances. A "balance sheet" analysis, while not paramount, is often relevant in providing commercial context.

There are no specific restructuring or insolvency regimes applicable to certain companies or institutions. However, the Australian Prudential Regulation Authority has certain powers in respect of authorised deposit-taking institutions (ADIs) and insurance companies under the Insurance Act 1973 (Cth), the Life Insurance Act 1995 (Cth) and the Banking Act 1959 (Cth). These include the ability to appoint a statutory manager to an ADI or to apply to the court for a judicial manager to be appointed to a distressed or insolvent insurer. ADIs and insurance companies can also be wound up under the usual insolvency provisions of the Corporations Act in certain circumstances.

Consensual and out-of-court workouts are common in the Australian restructuring market but are generally only useful in dealing with classes of finance debt (eg, secured debt) because of their inability to bind large groups of general creditors. Despite this, Australian banks are generally reluctant to take enforcement action and this has provided opportunities for distressed borrowers to negotiate with their lenders, contributing to a growing turnaround market. Workouts will often involve the lenders(s) entering into a compromise to enable the company to trade on.

Section 588GA of the Corporations Act (safe harbour provision) attempts to provide directors with some protection from insolvent trading liability to enable them to trade out of their difficulties (provided a viable plan is in place at the relevant time). While the safe harbour provision was intended to promote informal and consensual workouts, the Australian courts are yet to consider its operation. Therefore, the extent to which the safe harbour provision has encouraged directors to consensually restructure is unclear. 

There is no requirement in Australia for parties to enter mandatory consensual restructuring negotiations before the commencement of a formal statutory process.

Consensual restructuring arrangements are generally implemented between lenders and obligor groups, and include forbearance/standstill and waivers or "amend and extend" arrangements. Lenders may agree to defer or forgo amortisation for a period and agree not to take enforcement action subject to the obligors complying with reporting and other requirements. Consensual restructuring arrangements often include the sale of assets, capitalisation of interest and, sometimes, debt forgiveness. Despite this, these arrangements will usually preserve existing breaches. If successful, consensual restructuring arrangements can give the company, and the directors, breathing space and the ability to trade out of difficulty.

Informal creditors’ committees are sometimes used by lending syndicates to facilitate an effective negotiation process with the debtor but are not commonly used in a restructuring context.

There is no debtor-in-possession financing regime in Australia directly analogous to that seen in the US. Normally, new money is provided by the existing lender group or by a third-party financier with the consent of the existing lenders, such that it receives super senior priority. Both receivers and administrators are personally liable for monies borrowed (although they will be indemnified out of the assets of the company for the new funds) so lenders will often get comfortable lending to these persons, assuming "existing" lenders consent.

Australia’s restructuring and insolvency laws do not impose general duties on creditors to each other, a company or third parties in the context of informal workouts and restructurings.

In the absence of a formal insolvency administration, a creditors’ scheme of arrangement or the agreement of each party, parties to a consensual arrangement are unable to bind minority creditors or shareholders. However, facility documents or inter-creditor arrangements may enable majority lenders to bind minority ones. For example, syndicated facility documents usually allow lenders with a two-thirds majority to amend non-essential terms; however, amendments to essential terms, such as repayment dates, usually require unanimous consent.

In Australia, security can be taken over most assets, such as land, shares, bank accounts, receivables, insurances, goods and equipment.

In respect of land, or fixtures and buildings attached to land, security is most commonly granted by way of a real property mortgage. The mortgagor is free to deal with the land (subject to any restrictions in the mortgage itself) and retains the beneficial and legal interest in the land. The mortgagee holds a legal charge that will confer actionable rights in the event of default.

In respect of all the security provider’s present and after-acquired property, security is most commonly granted by way of a general security deed (conceptually similar to a fixed and floating charge).

In respect of specific assets of the company, security is most commonly granted by way of a specific security deed (conceptually similar to a fixed charge).

Registration and Perfection

Once taken, the security would typically be registered:

  • where the security is given over personal property, on the Personal Properties Securities Register (PPS Register) (discussed below); or
  • where the security is given over land, on the land register in the Australian state/territory where the land is situated.

While registration is not mandatory, the benefit of registering security is that it gives the secured party priority over other unregistered security or unsecured creditors. In the absence of any intercreditor arrangements, earlier registrations in time will generally prevail over subsequent registrations irrespective of when the underlying security interest was granted (a key exception to this rule is where funds are provided by a financer to a security provider specifically for the purchase of an asset and security is taken over that asset).

The PPS Register is established under the Personal Property Securities Act 2009 (Cth) (PPS Act), which sets out a single national system for the creation, priority and enforcement of security interests in personal property (all property other than land, fixtures and buildings attached to land, water rights and certain statutory licences). The PPS Act also applies to security interests – such as specific lease arrangements, retention of title arrangements and transfers of debt – regardless of whether the relevant arrangement secures payment or performance of an obligation.

Generally, perfection of a security interest occurs when the security provider and the secured party execute a security agreement and the security interest is registered on the PPS Register. However, security interests over certain assets can be perfected other than by way of registration, for example, by control or possession.

There are strict time limits within which a secured party is required to register their security interest on the PPS Register. A failure to register within these time limits may mean that the security interest is void as against a liquidator. In addition, a failure to register a security interest correctly or at all may cause the relevant security interest to be unperfected. An unperfected security interest will “vest” in the security provider upon insolvency, which means that the relevant secured party will lose any interest they have in the relevant collateral that is the subject of the unperfected security interest.

The rights of a secured creditor to enforce a security interest (ie, to appoint a receiver or voluntary administrator if the secured creditor has security over the whole, or substantially the whole, of the company’s property) are subject to:

  • the requirement that the security interest has been perfected as prescribed by the PPS Act and is enforceable; and
  • any contractual intercreditor arrangements governing enforcement.

The Corporations Act provides for an "automatic stay" on the enforceability of contractual ipso facto clauses that allow a contract (entered into after 1 July 2018) to be terminated/amended due to:

  • a company entering into a scheme of arrangement in order to avoid a winding-up;
  • the appointment of a receiver/controller to the whole, or substantially the whole, of the company’s assets;
  • the appointment of an administrator; or
  • the appointment of a liquidator immediately following administration or a scheme.

Ipso facto clauses are clauses that allow one party to enforce a contractual right, or terminate a contract, upon the occurrence of a particular event, usually upon insolvency or a formal insolvency appointment.

A court has the power to lift the automatic stay if doing so is in the interests of justice, or where a relevant scheme of arrangement is found to not be for the purpose of avoiding a winding-up. "Stay orders" may be granted with respect to broader rights not covered by the automatic stay carve-out, but may only be granted upon application by the relevant external administrator.

Secured creditors who have enforced their security interests generally stand outside formal insolvency processes. If a controller (such as a receiver and manager) is appointed to the secured property of a company, the controller’s power will be exercised to the exclusion of another external administrator appointed to the company (such as a liquidator or administrator).

During a voluntary administration, a secured creditor with security over the whole, or substantially the whole, of the company’s property may enforce its security, provided it commences enforcement:

  • before the voluntary administration;
  • within 13 business days of receiving notice of appointment of the voluntary administration (this being the "decision period"); or
  • with leave of the court or consent of the administrator.

Where a DOCA proposal is put forward for creditor approval and the company executes a DOCA, a secured creditor who did not vote in favour of the proposal will have the ability to enforce its security interests once the DOCA becomes effective.

Secured creditors stand outside the insolvency process and their priority is determined by the Corporations Act, the PPS Act and any contractual intercreditor arrangements. Employees enjoy a priority over ordinary unsecured creditors for certain unpaid amounts and, in the ordinary course, external administrators have priority over all unsecured creditors (including employees) for their approved fees and expenses. Employee claims also have priority over assets subject to a charge over circulating (floating) assets.

While there is no legal basis for this, key suppliers will often be kept whole (or close thereto) in a restructuring (particularly through a DOCA or a scheme of arrangement) if there are commercial drivers for doing so.

In the normal course, a creditor may commence proceedings (and obtain default judgment) through the courts to recover outstanding amounts owed by a debtor. The court has extensive powers to order a range of remedies including seizure of assets, diversion of a debtor company’s income and orders for the winding-up of the company.

However, once a company is placed into administration, a statutory moratorium will apply to any proceedings commenced, including any enforcement proceedings unless administrator consent or leave of the court is obtained (Section 440D of the Corporations Act). Criminal proceedings are an exception.

After the commencement of a winding-up of a company, or after the appointment of a provisional liquidator, legal proceedings are not to be commenced or continued against that company without leave of the court (Section 471B of the Corporations Act).

A court may grant leave for a claimant to proceed against the company if there is a public interest aspect to the claim (eg, claims brought by regulators for statutory breaches).

No moratorium exists during a receivership, and creditors may take action against the company including initiating court proceedings, but any actions are treated as unsecured claims (subordinated to the claims of the secured creditor who appointed the receiver). The receiver is likely to be in control of the company’s material assets and is permitted to realise these assets for the benefit of the secured creditor only (any surplus is provided to the company and would be available for distribution to unsecured creditors).

In certain circumstances, freezing orders (also known as Mareva orders) will be granted by the court to prevent frustration or abuse of the process of the court, including to prevent a company from dealing with, or disposing of, assets; thus ensuring that a company will have assets capable of satisfying any judgment.

Although useful for creditors looking to protect assets, a freezing order does not improve the position of the applicant creditor in the event of insolvency of the judgment debtor.

These orders will only be granted where there is an arguable case, and there exists a real possibility of the company concealing or disposing of or removing its assets from the court’s jurisdiction in order to avoid satisfying an adverse judgment against it.

Priority Claims

The pari passu principle (Section 555 of the Corporations Act) provides that all debts and claims which are admissible to proof rank equally. However, Section 556 of the Corporations Act provides that, after secured debts are satisfied (except debts secured over circulating assets), certain claims have priority in a liquidation, administration or a DOCA as follows:

  • costs and expenses (except fees) incurred by a liquidator, administrator or deed administrator in preserving or realising the company’s assets or carrying on the company’s business;
  • post-appointment trading and other liabilities in respect of which an administrator is entitled to be indemnified;
  • any other expenses (except fees) properly incurred by a liquidator, administrator or administrator of a DOCA;
  • fees of a liquidator, administrator or administrator of a DOCA; and
  • employee entitlements for wages, superannuation, injury compensation, annual and long-service leave, payments in lieu of notice and redundancy.

Commonwealth government debts (including tax debt) do not receive any special priority.

Employment-Related Liabilities (Including Superannuation)

Employee wages, superannuation, leave entitlements and redundancy payments that are outstanding are given priority over payment of ordinary unsecured creditors in the distribution of assets in a winding-up. Pursuant to the Commonwealth’s Fair Entitlement Guarantee (FEG), when a company is placed into liquidation, the Commonwealth government can make payments to employees of certain levels of unpaid wages, leave and other entitlements, assuming the position of the employee creditors and being afforded the same priority.

Certain employee entitlement claims have priority over secured debts (which are secured by a security interest over circulating assets).

The Corporations Act also affords protection to employee entitlements following the company and its creditors entering into a DOCA; employee claims must receive a priority at least equal to what they would receive if the company were being wound up.

Voluntary Administration/Deed of Company Arrangement (DOCA)

A DOCA is essentially a contract or compromise between the company and its creditors. The rights and obligations of the creditors and company differ under a DOCA and therefore should be viewed as a distinct regime from voluntary administration.

DOCAs are flexible. The terms may provide for a moratorium on debt repayments, a reduction in outstanding debt, and the forgiveness of all or a portion of the outstanding debt. DOCAs may be used to achieve a debt-for-equity swap through the transfer of shares, either with the consent of shareholders or with leave of the court under Section 444GA of the Corporations Act. Court approval will be granted where it is accepted that the shares have no "economic" value.

A DOCA will be entered into if, at the second meeting of creditors, a bare majority of creditors in value and number vote in favour of the DOCA. The chairperson (usually, the administrator) may exercise a casting vote. A DOCA will bind the company, its shareholders, directors and unsecured creditors. Secured creditors are not obliged to vote on the DOCA and only those voting in favour are bound by it.

Upon execution of a DOCA, the voluntary administration ends. Once a DOCA has achieved its stated aims it will terminate and the company will be wound up. If a DOCA does not achieve its objectives or is challenged by creditors for being oppressive, unfairly prejudicial or contrary to creditors’ interests, it may be terminated by the court.

In recent years there has been an increase in the use of "holding DOCAs", which do not provide for a distribution of the company’s property to creditors but rather allow the deed administrators more time to restructure the company or sell its assets.

Creditors’ Scheme of Arrangement

A creditors’ scheme of arrangement is a restructuring tool that may be used regardless of whether the company is insolvent. A scheme is a proposal put forward (with input from management, the company or its creditors) to restructure the company in a manner that includes a compromise of the rights of any or a number of stakeholders. The process is overseen by the courts and requires approval by all classes of financial creditors. Schemes are generally used in large and complex restructurings.

A scheme must be approved by at least 50% in number and 75% in value of creditors in each class of creditors and by the court. Each class should include those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to a "common interest". Despite this long-standing proposition, the recent decision in the matter of Boart Longyear Limited (No 2) [2017] NSWSC 1105 suggests that courts may agree to put creditors in classes even where the creditors within that class appear to have objectively distinct interests.

The outcome of a scheme depends on the terms of the arrangement with the creditors but, most commonly, a company is returned to its normal state upon implementation as a going concern but with the relevant compromises in effect.

The advantages of a scheme are that:

  • they can cover any lawful arrangement that concerns the rights and obligations of the company and its creditors, including a reorganisation of the share capital of the company by the consolidation of, or division of shares into, different classes;
  • unlike a DOCA, a scheme can bind secured creditors who vote against the scheme, provided the requisite majorities of scheme creditors vote in favour of the scheme and the scheme is approved by the court; and
  • a scheme can bind rights that creditors have against third parties (such as guarantors), provided there is a sufficient nexus between the scheme and the rights being compromised.

The disadvantages of a scheme include the cost, complexity, uncertainty of implementation, timing issues (it is subject to the court timetable and generally takes between three to six months to complete) and the overriding issue of court approval (a court may exercise its discretion to not approve a scheme of arrangement, despite a successful vote, if it is of the view that the scheme of arrangement is unfair).

Insolvency Reform for Small Businesses

The Australian Government has announced that it will be introducing legislative reforms to the Australian insolvency framework from 1 January 2021 (subject to the passing of legislation), comprising of a new formal debt restructuring process for small businesses. The intention of the proposed reforms is to allow small businesses to access a single, streamlined restructuring process whilst allowing directors to remain in control of the business. It will draw on elements of the US Chapter 11 debtor-in-possession restructuring model.

Voluntary Administration/DOCA

Voluntary administration, unlike receivership, is entirely a creature of statute (see Part 5.3A of the Corporations Act) and creditors control the outcome of the administration to the exclusion of management and members.

Administrators have wide management powers. They take control of the company’s business, property and affairs, and may carry on the business or terminate or dispose of any part of the business or its property (subject to the rights of secured creditors). Once an administrator is appointed, a statutory moratorium applies, which restricts the enforcement rights of third parties and litigation claims. There is an exception for a secured creditor that has security over the whole, or substantially the whole, of the assets of the company where these rights are exercised within the "decision period" (13 business days after the administrators’ appointment).

There are two creditors’ meetings during the course of an administration. At the first (which must be held within eight business days of the administrators’ appointment), the administrators are confirmed (or replaced) and a committee of creditors may be established. At the second meeting (which must usually be held within 25 business days of the administrators’ appointment), the administrators provide a report on the affairs of the company to the creditors and outline the best option available for the future of the company to maximise returns to creditors. There are three possible outcomes of the second meeting:

  • entry into a DOCA;
  • liquidation; or
  • terminating the administration and returning power to the directors.

The administration will terminate according to the outcome of the second meeting, at which point a secured creditor’s rights will re-enliven unless the termination is due to the implementation of a DOCA approved by that secured creditor. The contractual terms of a DOCA normally mirror many of the elements of an administration (such as a moratorium).

Administrators are personally liable for any new money provided to a company in administration/DOCA. Administrators have a right of indemnity from the company for these funds, which is secured by a statutory lien over circulating assets. However, the lien does not take priority over existing secured creditors without their consent.

Creditors’ Scheme of Arrangement

There is no automatic statutory moratorium when a scheme of arrangement is proposed (other than the ipso facto stay referred to in 4.2 Rights and Remedies). However, the applicant may apply to the court to restrain further legal proceedings against the company.

Unlike voluntary administration, directors and officers of a scheme company maintain their powers during the scheme process.

Any new money provided would be documented under the existing or new credit arrangements between the scheme company and the existing or new lenders and would be given effect to by the scheme terms.

A scheme will give effect to the amendments required/new terms.

Voluntary Administration/DOCA

Further to our comments at 6.2 Position of the Company, in an administration, the creditors decide the outcome of the company at the second meeting. In some cases, a committee of creditors will be formed to assist and advise the administrator and monitor their conduct. The committee also has the power to approve the administrators’ remuneration.

Creditors’ Scheme of Arrangement

Creditors are involved in schemes and they must vote according to their class. Creditors have no formal role in the scheme process but will ordinarily remain informed by way of disclosure materials that must be provided to scheme creditors.

Voluntary Administration/DOCA

Provided that a DOCA is approved by the relevant majorities, the claims of unsecured creditors may be modified without consent. An unsecured creditor could attempt to set a DOCA aside if the cram-down would result in it receiving less than it would receive in a liquidation. In the ordinary course, claims of secured creditors cannot be modified under a DOCA unless they vote in favour of the DOCA or with court approval.

There has, however, been some divergence from the widely held view that secured creditors are not "bound" by a DOCA unless they vote in favour of it. In Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95 and Re Bluenergy Group Limited [2015] NSWSC 977, the courts separately held that a DOCA can (if so expressed) extinguish the debt of a secured creditor that did not vote in favour of the DOCA (under Section 444D(1) of the Corporations Act), but not the secured creditor’s ability (under Section 444D(2)) to realise or deal with its security in the secured property, provided there was a right to enforce the security at the time the DOCA took effect.

Creditors’ Scheme of Arrangement

Claims of creditor classes (including secured and unsecured financial creditors) can be compromised under a creditors’ scheme of arrangement without consent if the requisite majority of each class of creditors is achieved (50% in number and 75% in value). However, a scheme must be approved by each class of creditors so that inter-class cram-down is not possible.

There is no specific prohibition on trading claims during the formal insolvency processes. Often, a creditor group involved in a scheme will enter into a form of "lock-up agreement", whereby debt trading amongst the group will be prohibited, or require that purchasers agree also to be locked up.

As DOCAs succeed an administration, they are technically only implemented where the company is insolvent or likely to become insolvent and are not necessarily conducive to a reorganisation for administrative efficiency, in the absence of insolvency.

A members’ scheme of arrangement (rather than a creditors’ scheme of arrangement) is a more appropriate vehicle for a solvent restructure or reorganisation.

A corporate group in a liquidation can be "pooled" to achieve winding-up efficiencies in certain circumstances.

Where a company is in administration, that company is unable to use its property and any such transactions are void unless:

  • effected by the administrators;
  • the administrators provide consent; or
  • court approval is obtained.

The position with a DOCA will be dependent on its terms.

While there are no statutory restrictions on the use of property of a company that has proposed a scheme of arrangement, the documents that give effect to the scheme may impose restrictions.

Receivership

Section 420A of the Corporations Act imposes a statutory obligation on receivers to obtain market value or, in the absence of a market, the best price obtainable in the circumstances. Upon a sale, the receiver will look to transfer the assets free of the security with the consent of the receivers’ appointor. Often, the terms of any intercreditor arrangements will provide for the automatic release of subordinated security. If not, direct negotiations must occur with the secured subordinated creditors, or the prior ranking security holder could look to sell the assets as mortgagee to overreach the secured subordinated creditors.

Voluntary Administration

Administrators may sell assets but are not permitted to sell assets subject to security without the consent of the secured party or court sanction.

Liquidations

Liquidators can sell or otherwise dispose of unencumbered property of the company without approval from the court or other parties to the liquidation. If assets are encumbered, the consent of the secured party will be required unless a court directs otherwise.

A liquidator owes fiduciary duties to the company and has a duty to obtain the highest possible price when realising the assets of the company.

Traditionally, credit bids have not been a feature of the Australian market. However, there is likely to be an increase in credit bids from credit funds holding security where unsecured creditors are clearly out of money.

Creditors’ Scheme of Arrangement

The terms of the scheme itself can provide for the disposal of assets and any associated release of security required. These releases will need agreement, either from the creditors or through the scheme itself.

Pre-packs

Pre-pack administrations (colloquially known as “pre-packs”) are seen less in Australia than in the UK. A pre-pack is where a restructure is developed by the secured parties prior to the appointment of an administrator or receivers, and is implemented immediately, or very shortly after, the appointment is made. Pre-packs have not traditionally been used in their traditional sense because:

  • an asset sale that does not test the market may breach Section 420A of the Corporations Act and poses undue risk for the insolvency practitioner; and
  • Australia has strict independence requirements for insolvency practitioners – they are not permitted to have any substantial prior involvement with a company to which they are appointed.

However, Australia is likely to see more pre-packs where value can clearly be justified.

Australia’s recently introduced safe harbour provision (see 2.3 Obligation to Commence Formal Insolvency Proceedings), which was intended to encourage directors to pursue restructuring avenues without being held liable for insolvent trading, may not provide sufficient protection for directors (particularly for those with no appetite for risk).       

Please see 6.4 Claims of Dissenting Creditors regarding the rights of secured creditors in the context of a DOCA.

If the requisite majority of secured creditors in the relevant class (50% in number and 75% in value of creditors) vote in favour of the scheme, and the scheme involves a release of property, then the release will be effected.

Voluntary Administration

An administrator can borrow funds on behalf of a company and is personally liable for these debts (and any associated interest and borrowing costs) but will be indemnified from the company’s assets. The administrator has a lien over the company’s assets to secure any liability (see Sections 443D and 443F of the Corporations Act). To the extent that this funding was to be secured, consent of any already existing secured party over the assets would need to be obtained.

Creditors’ Scheme of Arrangement

Subject to the terms of the incumbent financing arrangements, and in the context of the directors maintaining control over the company, there is no prohibition on the company obtaining new money.

DOCAs that involve a distribution to creditors and creditors’ schemes of arrangement must include a process whereby claims the subject of such forums against the company are quantified. Often, these processes will likely mirror the processes in the Corporations Act and Corporations Regulations 2001 (Cth) that apply in a liquidation.

Administrators, receivers and liquidators can, as a general proposition, refrain from performing contracts but do need to recognise equitable and proprietary rights that might exist under such contracts.

DOCA

A DOCA is approved by the creditors with no court involvement. However, the court may make an order terminating a DOCA if that DOCA is oppressive or unfairly prejudicial to, or unfairly discriminatory against, one or more creditors or contrary to the interests of the creditors as a whole. 

Creditors’ Scheme of Arrangement

A court must consider a number of factors in deciding if it is to approve a scheme, including whether that scheme is fair.

DOCA

The Australian courts have clearly determined that a DOCA cannot release third parties from liabilities without the express agreement of each relevant creditor.

Creditors’ Scheme of Arrangement

A creditors’ scheme of arrangement is more flexible than a DOCA and can extinguish claims that scheme creditors have against third parties provided there is an adequate nexus between the release and the relationship between the creditor and the company, as creditor and debtor.

There is no statutory right of set-off in any external administration (including a scheme), other than liquidation, that includes an automatic statutory set-off (Section 553C of the Corporations Act). It is common for a DOCA to give creditors the right to set off as, otherwise, the potential for challenge on grounds of unfairness increases.

DOCAs and schemes of arrangement are contracts between the relevant company and its creditors. The deed or scheme administrator has the power to enforce the "contract" against a creditor, including by seeking court orders to restrain the creditor from taking further steps.

If a DOCA is not complied with by the company, it could be terminated in accordance with its terms, or the deed administrator may ask the creditors to vote on whether it should be terminated, and the company placed into liquidation.

A DOCA or a scheme could effect a debt for equity swap, in whole or in part (either on a consensual or non-consensual basis), resulting in existing equity holders losing some or all of their equity interests (sometimes without consideration). Alternatively, a DOCA may implement a sale of assets which would mean the equity holder retains shares in a shell company only.

Receivership

The main role of a receiver is to take control of the assets subject to the relevant security and hold and/or realise those assets for the benefit of the secured creditor(s). Receivers do not have an active obligation to unsecured creditors. A receiver is not necessarily obliged to act on the instructions of the secured creditors but must act in their best interests. This will invariably lead a receiver to seek the views of secured creditors on issues that are material to the receivership. The receiver is not required to report to unsecured creditors regarding the receivership and unsecured creditors are not entitled to obtain a copy of the receiver’s report to the secured creditor.

The security document itself will entitle a secured party to privately appoint a receiver, and will also outline the powers available (supplemented by the statutory powers in Section 420 of the Corporations Act). Generally, a receiver has wide-ranging powers, including the ability to operate the business, and sell or borrow against the secured assets. The receiver has power under Section 419A of the Corporations Act to give notice that they do not propose to exercise rights in relation to premises leased by the company, which protects the receiver against personal liability for rent.

The receiver will, by operation of the security instrument, be the agent of the debtor company, not the appointing secured party (although this changes if a liquidator is appointed to the debtor company, whereby the receiver will become the agent of the secured party). There is no set time frame for receiverships and, once in control of the assets, the receiver may run the business of the company if it is appointed over the whole, or substantially the whole, of the assets of a company.

Voluntary Administration/Deed of Company Arrangement

See 4.2, 5.3, 5.5, 6.1 to 6.3, 6.7, 6.11, 6.12, 6.14, 6.15, 7.3 and 9.2 for voluntary administration and DOCAs.

Provisional Liquidation

A creditor, a shareholder or the company has standing to apply to the court for the appointment of a provisional liquidator after the filing of a winding-up application and before the making of a winding-up order. A provisional liquidator will normally only be appointed if there is a risk to the assets of a company prior to it entering liquidation and is therefore normally only given very limited powers to preserve the status quo. Provisional liquidators are required to provide creditors with notification of their appointment and prepare a report on company activities and property.

After the appointment of a provisional liquidator, legal proceedings are unable to be commenced or continued against a company without leave of the court (see 5.3 Rights and Remedies for Unsecured Creditors).

A court determines the outcome of a provisional liquidation; either that the company move to a winding-up, or that the appointment of the provisional liquidator is terminated.

Liquidation

Liquidation is the process whereby the affairs of a company are wound up and its business and assets are realised for value. A company may be wound up voluntarily by its members if solvent or, alternatively, if it is insolvent, by its creditors or compulsorily by order of the court.

Voluntary Liquidation (Members and Creditors)

The members of a solvent company may resolve that a company be wound up if the board of directors is able to give a 12-month forecast of solvency. If not, or if the company is later found to be insolvent, the creditors take control of the process.

Compulsory (Involuntary) Liquidation

Further to our comments at 2.4 Commencing Involuntary Proceedings and 2.5 Requirement for Insolvency, the most common ground for a winding-up application made to the court is insolvency, usually indicated by the company’s failure to comply with a statutory demand for payment of a debt. Other common grounds being:

  • a board or shareholder dispute has arisen that affects the management of the company; or
  • if the court believes that it is just and equitable to do so.

In both a voluntary and compulsory winding-up, the liquidator will have wide-ranging powers, including challenging voidable transactions and taking control of assets. Generally, a liquidator will not run the business as a going concern and will realise the assets of the company for the benefit of its creditors and, to the extent of any surplus, its members.

After the commencement of a winding-up, legal proceedings are not to be commenced or continued against a company without leave of the court.

The liquidator is required to keep the creditors informed regarding the liquidation, including giving notice to creditors of their appointment and advising creditors of their rights in the liquidation, such as their rights to request information or direct a meeting of creditors to be held. A statutory report is also made available to creditors within three months following the liquidator’s appointment. Liquidators often provide further reports to creditors and creditors may request further reports. 

Creditors may lodge a proof of debt in the liquidation and the chairperson of the creditors' meetings will decide whether to accept the debt for voting purposes. Section 553 of the Corporations Act provides that all debts payable by, and claims against, the company that are present or future, certain or contingent, ascertained or sounding only in damages are provable in a winding-up. A formal proof of debt is required to be submitted in order for creditors to receive a dividend in the liquidation.

Liquidators may disclaim onerous property under Section 568 of the Corporations Act. The types of property that may be disclaimed are broad and include contracts. Third parties are required to attempt to mitigate any loss as a result of the disclaimer however, they may lodge a proof of debt in the liquidation in respect of any loss suffered.

At the end of a winding-up, the company will be deregistered and cease to exist.

Any administrator, liquidator or receiver that has been appointed has the power to sell property that is not subject to a security interest. There are limited instances where assets subject to a security interest can be sold (without consent), although this is rare in practice.

While credit bidding is not formally recognised under Australian law, it does occur in practice. A secured creditor may purchase an asset over which it has security sold through a receivership, either directly or through a newly formed company, provided the requirement to obtain market value or, in the absence of a market, the best price reasonably obtainable in the circumstances is satisfied.

See 6.8 Asset Disposition and Related Procedures in relation to pre-pack administrations. 

Voluntary Administration

Creditors in voluntary administration may appoint a “committee of inspection” at or after the first meeting of creditors. Members of the committee may be appointed or removed by:

  • the resolution of a single creditor representing at least 10% in value of the creditors, or a group of creditors who together represent at least 10% in value of creditors; or
  • the resolution of an employee or employees of the company representing at least 50% in value of employee entitlements owed by the company.

A committee must have at least two members (although five to seven members is common).

The committee has a consultative function; it may advise, assist and give directions to the administrator and monitor the conduct of the administration. If there is a conflict between the direction of the committee and the creditors as a whole, the directions of the creditors will prevail.

The general powers of the committee include to:

  • approve the remuneration of the administrator;
  • require that the administrator convene a meeting of the company’s creditors;
  • request information from the administrator; and
  • with the consent of the administrator, obtain specialist advice or assistance in relation to the conduct of the administration.

The committee exercises its powers by passing a resolution at a committee meeting, which must be attended by a majority of the members.

Membership of the committee is voluntary and unpaid. Except with leave of the court, a committee member cannot derive any income from their position. They also must not purchase the property of the company.

Liquidation

A committee of inspection may be formed to assist and advise the liquidator in both compulsory and creditors’ voluntary liquidations. While the process for appointment and the general powers of the committee are the same as those that apply in a voluntary administration, in a liquidation, the committee has additional powers to:

  • approve the compromise of a debt owed to the company that is less than a prescribed amount (currently AUD100,000); and
  • approve the company entering into an agreement for a term of longer than three months.

Recognition of foreign insolvency proceedings in Australia may be effected in two principal ways:

  • pursuant to the UNCITRAL Model Law on Cross-Border Insolvency (Model Law) which has been adopted by Australia under the Cross-Border Insolvency Act 2008 (Cth) (the CBIA); or
  • pursuant to Section 581 of the Corporations Act, which requires Australian courts to render assistance to foreign courts in “‘external administration”’ matters.

UNCITRAL Model Law

To effect recognition pursuant to the Model Law, Section 10 of the CBIA requires the foreign bankruptcy representative to apply to the Federal Court of Australia or the Supreme Court of a state or territory of Australia for recognition. Recognition as a “foreign main proceeding” will trigger an automatic stay on creditor actions (including a winding-up application) and recognition as a “foreign non-main proceeding” will trigger a court discretion to impose a stay.

The scope of the stay that applies is the same as that which would apply under the analogous Australian procedure in Chapter 5 (other than Parts 5.2 and 5.4A) of the Corporations Act. For example, if the foreign proceeding is a debtor-in-possession corporate rescue or restructuring proceeding, involving a plan requiring creditor approval, the most analogous Australian procedure would be voluntary administration under Part 5.3A of the Corporations Act.

Section 581 of the Corporations Act

As an alternative to recognition under the Model Law, Section 581 of the Corporations Act provides the basis for an Australian court to act in aid of a foreign court in “external administration matters”. The court of a prescribed country can:

  • apply to the Federal Court of Australia or Supreme Court of a state or territory of Australia for assistance under Section 581(2)(a)(iii) of the Corporations Act, and that court is required to assist; and/or
  • issue a letter of request for assistance under Section 581(3) of the Corporations Act.

The prescribed countries are Canada, Jersey, Malaysia, New Zealand, Papua New Guinea, Singapore, Switzerland, the UK and the USA.

The nature and extent of aid to be given is in the discretion of the court.

While Section 581(2)(a) of the Corporations Act requires the Australian court to aid a foreign court, the Australian court is not expressly permitted or required by the legislation to exercise the statutory powers imposed by the foreign court. The Australian court will deploy its own general jurisdiction so as to assist and support the foreign court by causing its orders to have effect and the objectives of those orders to be achieved (Re Independent Insurance Co Ltd (In liq) (2005) 193 FLR 43).

Enforcement of Foreign Judgments

The Foreign Judgments Act 1991 (Cth) (FJA) creates a general mechanism for the registration of judgments obtained in foreign countries. However, the FJA will only apply to judgments from jurisdictions where, in the opinion of the Governor-General, substantial reciprocity of treatment will be afforded to Australian judgments.

However, Australian courts may be reluctant to enforce foreign judgments where, for example, the relief sought would adversely affect pre-existing rights of Australian creditors. Notably, due to a lack of reciprocity, judgments of US courts cannot be enforced under this legislation.

The recognition of foreign insolvency proceedings in Australia is effected by the methods outlined in 8.1 Recognition or Relief in Connection with Overseas Proceedings.

Under the Model Law, a debtor’s COMI will determine whether a foreign proceeding will be recognised as a foreign main proceeding or a foreign non-main proceeding. Where a foreign proceeding is recognised as a foreign main proceeding, creditor actions and enforcement proceedings against the assets of the debtor will be stayed in all non-main jurisdictions. The Model Law is deliberately silent on how to determine COMI. The CBIA provides for a rebuttable presumption that a debtor’s COMI is the location of its registered office. 

The courts will apply a general test to determine whether the statutory presumption has been rebutted. The general test is that the COMI should correspond to the place where the debtor conducts the administration of its interests on a regular basis and is therefore ascertainable by third parties. Where a debtor is part of a corporate group, the court will consider a number of factors, including:

  • the location of the debtor’s headquarters;
  • its books and records;
  • its financial and operational centre;
  • its primary assets,
  • the majority of the debtor’s creditors or a majority of creditors who would be affected by the proceedings;
  • its administration;
  • its payroll;
  • its accounts payable or cash management activities;
  • the tax authority; and
  • the jurisdiction which applies to most disputes.

Foreign creditors have the same rights as other unsecured creditors in formal insolvency processes.

Generally, the qualifications and registration requirements to act in the roles of administrator, liquidator, deed administrator or receiver are the same, however, each has a distinct set of powers and obligations.

Liquidators

The liquidator’s role is:

  • to realise the company’s assets;
  • to investigate the conduct of directors/officers and any pre-appointment transactions (which may give rise to claims by the liquidator); and
  • to adjudicate on creditors’ claims and ultimately distribute the assets realised to creditors pursuant to the provisions in the Corporations Act.

Administrators

An administrator’s primary duty is to operate consistently with the objects of Part 5.3A of the Corporations Act. In this respect, an administrator must investigate the affairs of a company and provide an opinion on the future of the company. The administrator controls the company’s business, property and affairs, and has broad powers including power to borrow money and to carry on, terminate or dispose of the business or any property of the company.

Deed Administrators

An administrators' role is to administer the DOCA to which they have been appointed. Their powers are set out in the DOCA itself (and often mirror administrator powers).

Receivers

Receivers will usually, as a matter of law, act as agents for a company. Practically, however, a receiver acts in the interests of the secured party that has appointed the receiver, as the receivership is the means by which the secured party is repaid.

Administrators, liquidators, receivers and scheme administrators are each required to be registered liquidators. Individuals may apply for registration with ASIC and will be assessed on their relevant qualifications, conduct and fitness to act.

Liquidators

In a compulsory liquidation, a liquidator will normally be nominated by the creditor bringing the application to the court to wind up a company and appointed by the court. In a creditors’ voluntary liquidation, creditors of the company will resolve to appoint the liquidator.

Administrators

An administrator will most commonly be appointed by way of written instrument by a company where the company’s board resolves that the company is, or is likely to become, insolvent. Less frequently, a liquidator, provisional liquidator or a secured creditor who has an enforceable security interest in the whole, or substantially the whole, of a company’s property may appoint an administrator.

Deed Administrators

Almost always, the administrator of a company that enters into a deed of company arrangement will become the administrator of the DOCA.

Receivers

A security agreement will typically grant the secured party the right to appoint a receiver in respect of the secured property once the security becomes enforceable. The appointment is made by way of a deed of appointment.

Directors owe several general and specific law duties to the company, its shareholders and creditors, including:

  • duties of good faith, care and diligence;
  • to not improperly use the position or information obtained to gain personal advantage or cause detriment to the company;
  • to keep adequate financial records;
  • to take the interests of creditors into account; and
  • to prevent insolvent trading.

In some situations, directors may become personally liable for unremitted amounts of income tax or goods and services tax. The courts maintain a general discretion under the Corporations Act to excuse directors from liability if they can be shown to have acted honestly and reasonably.

A director may face liability for an amount of new debt incurred where they knew, or had reasonable grounds for suspecting, that the company was insolvent or would become insolvent at the time the new debt was incurred. As part of its legislative response to the COVID-19 pandemic, the Australian government has introduced temporary relief for directors from any personal liability for insolvent trading until 31 December 2020.

When a company is insolvent or nearing insolvency, the directors’ duty to act in the company’s best interests includes a duty to consider the interests of creditors. In The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239, Owen J held that the directors had breached their duty to have regard to the interests of creditors by entering into refinancing arrangements that improved the secured creditor’s security, to the detriment of other creditors. This was upheld on appeal.

Part 5.7B Division 2 of the Corporations Act contains what are commonly known as the “claw-back” or “avoidance” provisions, for pre-liquidation transactions which may be voidable on application of the liquidator. Transactions may include:

  • unfair preferences;
  • uncommercial transactions;
  • transactions with the purpose of obstructing creditors’ rights;
  • unfair loans; and
  • unreasonable director-related transactions.

For the first three of these types of transactions, it must also be shown that the company was insolvent at the time of the transaction or became insolvent as a result of that transaction (Section 588FC of the Corporations Act). 

Uncommercial transactions and unfair preferences are voidable if the company was insolvent at the time of the transaction or at a time when an act was done to give effect to the transaction. A transaction is “uncommercial” if a reasonable person in the company’s circumstances would not have entered into it. An unfair preference is one where a creditor receives more for an unsecured debt than would have been received if the creditor had to prove the winding-up.

Australian courts have also determined that loans to a company will be “unfair” and thus voidable if the interest or charges in relation to the loan were, or are, not commercially reasonable. This is to be distinguished from the loan simply being a bad bargain. Any “unreasonable” payments made to a director or a close associate of a director are also voidable, regardless of whether the payment occurred when the company was insolvent.

Upon a finding of a voidable transaction, a court may:

  • direct that the offending person pay an amount equal to some or all of the impugned transaction;
  • direct a person to transfer the property back to the company; or
  • direct an individual to pay an amount equal to the benefit obtained.

Insolvent transactions (which include both unfair preferences and uncommercial transactions) are voidable if entered into, in the case of unfair preferences, during the six-month period ending on the relation-back day, or in the case of uncommercial transactions, during the two-year period ending on the relation-back day. The “relation-back day” is generally the date of the application to wind up the company or the date of the appointment of a liquidator, or if the company had previously been in administration, the date of the appointment of the administrator.

Unfair loans are voidable if entered into at any time before the winding-up began.

Unreasonable director-related transactions are voidable if entered into during the four years ending on the relation-back day.

Transactions entered into for the purpose of defeating, delaying or interfering with creditors’ rights on a company’s winding-up are voidable if entered into during the ten years ending on the relation-back day.

A liquidator has the standing to bring an application to the court on behalf of the company and, in certain circumstances, creditors.

Gilbert + Tobin

Level 35, Tower Two
200 Barangaroo Avenue
Barangaroo
NSW 2000

+61 2 9263 4328

+61 2 9263 4111

DEmmett@gtlaw.com.au www.gtlaw.com.au
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Gilbert + Tobin has a dynamic restructuring and insolvency group that is valued for its pragmatic, commercial and partner-led service. The award-winning team has extensive experience advising and acting in relation to disputes and applications arising in restructures and workouts, voluntary administrations, liquidations and receiverships. It advises banks, borrowers, investors and directors, as well as many leading insolvency practitioners in relation to all types of insolvency administrations.

From Temporary Measures to Permanent Reform: Corporate Turnarounds in Pre and Post-COVID-19 Australia

Developments in restructuring and insolvency

The year 2020 has been one of significant change, including for the restructuring and insolvency profession in Australia. Change has been both systemic and systematic; and both temporary and permanent. Unlike previous years, where trends and developments in the insolvency sphere were driven and shaped by organic factors in the market and legislative change has generally been very slow, 2020 has seen change driven from the top down with Australian federal lawmakers swiftly implementing significant reforms in response to the challenges posed by COVID-19.

In March 2020, the Commonwealth Government of Australia (government) responded to COVID-19 by forcing our borders and businesses to close, effectively causing trade within Australia to grind to a halt and consumer confidence to plummet. In order to stem the wave of insolvencies of otherwise viable businesses that would inevitably have followed, the government introduced temporary relief measures for financially distressed businesses, which have now been extended to 31 December 2020.

In late September 2020, the government announced permanent sweeping reforms to the insolvency laws as they relate to small and medium-sized enterprises (SMEs) (SME Reforms). These reforms, which acknowledge the very significant role that SMEs play in the Australian economy, are intended to give SMEs the best chance of survival after the temporary relief measures end.

Temporary measures

On 23 March 2020, the government enacted the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (the Omnibus Act), which amended the insolvency laws as they relate to individuals and corporations.

The Omnibus Act has temporarily amended the operation of the statutory demand procedure under the Corporations Act 2001 (Cth) (the Corporations Act), which is the primary method by which creditors may seek to have a company wound up in insolvency. It increased the threshold for issuing a statutory demand on a company such that the amount due and payable by that company must be at least AUD20,000 (as opposed to AUD2,000) in order to prevent companies from being wound up by creditors for smaller amounts of debt. The Omnibus Act also extended the time that corporations have to comply with such statutory demands from 21 days to six months, in order to give companies additional time to make payments or negotiate with their creditors, as necessary.

Significantly, the Omnibus Act has also implemented a temporary defence to insolvent trading liability under Section 588G of the Corporations Act which provides that directors are personally liable for debts incurred when they should have known or have suspected that the company was insolvent. The temporary defence applies to debts incurred during the period from 25 March 2020 to 31 December 2020, provided those debts were incurred in the "ordinary course of the company’s business"; that is, necessary for the continuation of the business during that period. Examples of such debts might include those incurred in continuing to pay employees during the pandemic or a director taking out a loan to facilitate a shift to online trading.

These temporary measures have drastically reduced the number of corporate insolvencies during the period since their implementation. According to the Australian Securities and Investments Commission (ASIC) insolvency statistics series, the number of companies entering external administration nationwide decreased by close to 50% (from 683 to 364) in the period from March to June 2020. For another perspective, June 2020 saw 364 companies go into liquidation compared to 708 in June 2019.

Like any rapidly introduced piece of reactive legislation, uncertainty has inevitably arisen as to how particular elements of the Omnibus Act will be interpreted should they be tested by the courts. For example, the Australian Restructuring Insolvency & Turnaround Association (ARITA) expressed concerns that while the temporary defence to insolvent trading liabilities undoubtedly applies to companies placed into external administration before 31 December 2020, on ARITA’s analysis, the temporary amendments offer no protection for directors whose companies continue to trade after the temporary measures have ended.

While this uncertainty has been addressed in the SME Reforms, should this potential lacuna not be addressed in the context of larger corporations, we may see an upsurge in corporate insolvencies in the lead up to 31 December 2020 as directors determine that they are not prepared to risk continuing to trade into 2021 without this protection.

Permanent reforms

While many have understood why the temporary measures were introduced without consultation with peak industry bodies such as ARITA or the Australian arm of the Turnaround Management Association (TMA), such bodies (and the profession more generally) were significantly more critical of the lack of consultation that occurred prior to the government announcing SME Reforms on 24 September 2020.

These reforms are due to commence on 1 January 2021, which is an incredibly quick and unprecedented turnaround given that the last significant reform in this space was the introduction of the voluntary administration process in 1993.

The key aspects of these wholesale SME Reforms include the following.

Eligibility to participate in the new regime

These reforms apply to incorporated businesses with liabilities of less than AUD1 million, which according to the Australian Treasury, account for 76% of insolvencies (based on the number of companies with liabilities of less than AUD1 million that entered into external administration in FY 2018-19). According to the exposure draft of the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 (Cth) (SME Bill), which will implement the reforms, other eligibility criteria include that the insolvent company must have complied with taxation laws and that no director of the company has been a director of a company that has been the subject of a debt restructuring or simplified liquidation process. Key aspects of the reforms will be set out in the regulations and rules relating to the SME Bill, which have not yet been published.

A debtor-in-possession restructuring model

This new process enables eligible entities to remain in control of their business and to trade as usual while they attempt to restructure their debts. The reforms draw on key features of the US Chapter 11 bankruptcy process, the established Australian voluntary administration framework and debt agreements framework for individual debtors in Part IX of the Bankruptcy Act 1966 (Cth).

Broadly, an eligible entity, after the directors resolve (i) that they have reasonable grounds for suspecting that the company is insolvent or is likely to become insolvent at some future time, and (ii) to appoint a small business restructuring practitioner” (SBRP), may then appoint an SBRP, who may recommend that they adopt this new process.

The formal engagement of an SBRP operates as a stay on the commencement or furtherance of certain actions against the company and its directors (without the consent of the SBRP or leave of the court), including:

  • enforcement action by secured parties (unless security is over substantially the whole of the company’s property);
  • enforcement action by unsecured creditors;
  • enforcement of personal guarantees against directors and their relatives; and
  • protection from ipso facto clauses.

The directors and the SBRP have 20 business days to develop a proposal for the restructuring of the company’s debts (including any proposed remuneration for the SBRP) and to provide the creditors with sufficient documentation for their consideration and vote. It is expected that the regulations will provide that if 50% of creditors (by value) endorse the proposal, the legislation will pass and bind all unsecured creditors (and unsecured creditors to the extent that their debt exceeds the realisable value of their security interest).

If approved, the SBRP administers the proposal and makes distributions to creditors in accordance with it. Throughout this period, the SBRP may terminate the proposal if they believe, on reasonable grounds, that:

  • the company does not meet the eligibility criteria;
  • it would be in the interests of the creditors to not proceed with the proposal and for the restructuring to end; or
  • the company should be wound up.

Significantly, the company can continue to operate on a business-as-usual basis throughout this period and it is expected that the regulations to the SME Bill will provide that payments made, and transactions entered into, during the process are not liable to be set aside as preferences should the company ultimately enter external administration.

If the restructuring proposal is not approved, the business may elect to go into voluntary administration or to use the simplified liquidation process.

The government has announced that businesses that intend to access this process from 31 December 2020 can benefit from the existing temporary relief for liability for insolvent trading for up to three months thereafter. The SME Bill also creates a new safe harbour defence for debt incurred by the company during a restructuring where that debt is incurred in the ordinary course of the company’s business (or otherwise with the consent of the SBRP or by court order).

A simplified liquidation process

The reforms also propose a simplified liquidation process, which is commensurate to the asset base, complexity and risk profile of eligible SMEs. The simplified liquidation process preserves and applies most of the existing framework for liquidation in a creditors’ voluntary winding up and adopts small changes for a more fit-for-purpose and efficient process.

Key modifications to the existing liquidation process include:

  • removing the requirement to call creditor meetings;
  • the ability to form committees of inspection; and
  • simplifying the dividend process.

Eligible entities may use the simplified liquidation process provided that the report on the company’s business affairs and the declaration of eligibility for process requirements have been complied with, and that the directors of the company have not been directors of another company that has undergone a restructuring or been the subject of the simplified process within the time prescribed by the legislation.

Under the proposed reforms, the liquidator must cease following the simplified process if at least 25% in value of creditors direct the liquidator not to adopt the new process.

Changes to the operation of the insolvency profession

In addition to the introduction of SBRPs, the reforms propose a number of other changes to the insolvency profession in Australia. One such example is to make processes in external administrations “technology neutral”, which includes the ability to host virtual meetings and send electronic communications.

Corporate turnarounds in a pre and post-COVID-19 world

Except for the proposed SME Reforms, the pre-COVID-19 regime for insolvencies and restructuring in Australia continues to be creditor friendly. In fact, Australia’s insolvency laws have long been criticised for curbing rather than promoting corporate turnaround. If pushed into external administration by a creditor’s winding up application (or voluntarily or by other means), the pre-COVID-19 model imposed a significant regulatory and cost burden on businesses, the cost of which ostensibly reduced the likelihood of a successful restructuring.

Both the temporary measures and proposed permanent reform place the interests of debtors squarely in focus. This represents a shift away from the assumption that behind every failed business there is someone to blame towards an acknowledgement that, in the face of a significant economic downturn, there will be an increase in the percentage of insolvencies that are fairly categorised as genuine failures.

The proposed permanent reform also brings the Australian insolvency regime for SMEs closer to the debtor friendly models favoured overseas, such as Chapter 11 in the US and the recently introduced insolvency laws in the UK (including the introduction of a standalone moratorium, a new restructuring proposal process and provisions preventing the enforcement of ipso facto clauses in contracts for the supply of goods and services), which are intended to promote a culture of corporate rescue. 

While there may be cause for a degree of optimism in the proposed SME Reforms, one should proceed with caution. It is important to strike a balance between the importance of restructuring businesses which were viable before COVID-19 and will one day be viable again, and the economic need to incentivise that debts be paid when due, acknowledging the knock-on effects to other businesses and to public confidence more generally.

The safeguards which have been foreshadowed in the context of the SME reforms are promising. These safeguards include that:

  • related party creditors are not entitled to vote on restructuring proposals;
  • the entity and directors cannot use the restructuring process more than once during the prescribed period (likely seven years); and
  • the SBRP is required to discontinue the process where misconduct is identified (although the extent of the obligation that will be placed on them to investigate or act is unclear).

Throughout the entirety of the SBRP’s involvement, the directors of the company are bound to give the SBRP information about the company’s business and affairs and access to the company’s books. It is an offence under the proposed reform if the directors fail to do so. Additionally, it is an offence for the company to enter into a transaction or dealing affecting the property during this period unless that transaction or dealing is in the ordinary course of business, done with the SBRP’s consent, or by order of the court. Such prohibited transactions are void under the proposed legislation.

The SME Bill also suggests that, in order to be an SBRP, the person must be a registered liquidator, which gives some reassurance that these individuals will be highly trained in the area (as opposed to the oft-criticised and unregulated “pre-insolvency advisers”).

One can only assume that the government is hoping the debtor-in-possession restructuring process will yield greater returns and foster more goodwill between debtors and creditors.

However, the SME reform represents a big shift away from the pre-COVID-19 attitude of creditors, who previously used the statutory demand procedure as a key pillar in their debt recovery strategy. It is difficult to predict how creditors will respond to having lost that piece of their arsenal since March 2020, all the while likely suffering financial hardship themselves.

For the SME debtor-in-possession restructuring model to work, it will require not only reform but organic change of the kind discussed in the opening paragraph of this article. Only time will tell.

Gilbert + Tobin

Level 35, Tower Two
200 Barangaroo Avenue
Barangaroo
NSW 2000

+61 2 9263 4328

+61 2 9263 4111

DEmmett@gtlaw.com.au www.gtlaw.com.au
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Gilbert + Tobin has a dynamic restructuring and insolvency group that is valued for its pragmatic, commercial and partner-led service. The award-winning team has extensive experience advising and acting in relation to disputes and applications arising in restructures and workouts, voluntary administrations, liquidations and receiverships. It advises banks, borrowers, investors and directors, as well as many leading insolvency practitioners in relation to all types of insolvency administrations.

Trends and Development

Authors



Gilbert + Tobin has a dynamic restructuring and insolvency group that is valued for its pragmatic, commercial and partner-led service. The award-winning team has extensive experience advising and acting in relation to disputes and applications arising in restructures and workouts, voluntary administrations, liquidations and receiverships. It advises banks, borrowers, investors and directors, as well as many leading insolvency practitioners in relation to all types of insolvency administrations.

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