Restructuring & Insolvency

Our restructuring & insolvency legal team regularly publishes articles and updates – the full list of publications appears below.

If you'd like to be notified when we add new insolvency & restructuring publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

You can also read about our track record in restructuring & insolvency.

Restructuring & Insolvency Publications

  • Focus: How ipso facto provisions (and exemptions) affect project finance - both good and bad news

    5 September 2018

    The new ipso facto regime applies to contracts entered into on or after 1 July 2018. It imposes a stay on the exercise of certain contractual rights in some insolvency regimes (administration and some receiverships and schemes of arrangement, but not liquidation). There are many exemptions from the regime, some of which will be relevant to project finance. Partner Scott McCoy, Senior Finance Counsel Diccon Loxton and Senior Associate Isabel Cropley discuss some of the issues.

    Read More
  • Focus: Trustee insolvency - the Full Federal Court weighs in to the debate

    29 March 2018

    We recently examined the implications of a Victorian Court of Appeal decision on trustee insolvency in the Amerind Appeal1. As we foreshadowed, the Full Federal Court has just released its decision on similar issues.2 It came to a similar position to the Victorian court in deciding that trust assets should be applied first in paying employees and other statutory preferred creditors (though for varied reasons). But it came to the opposite position in holding that trust assets could only go to trust creditors, not non-trust creditors. That finding will cheer lenders and others dealing with trusts, but leaves a confused landscape. Partner Philip Blaxill, Senior Finance Counsel Diccon Loxton and Associate Lucas Tan report.

    Read More
  • Focus: Statutory priority of secured creditors and trustee insolvency: implications of Re Amerind appeal decision

    13 March 2018

    The recent unanimous Victorian Court of Appeal decision1 in an appeal from Re Amerind has been widely welcomed by insolvency practitioners and others, as it brought some clarity to the question of whether the statutory order of priority applies to trust creditors. However, not all aspects of the decision will be as widely welcomed. In particular, in favouring a previous controversial decision of the court suggesting that trust assets should be applied in paying non-trust creditors, the Court of Appeal has resurrected a longstanding debate. Trust creditors and beneficiaries will be concerned if it is followed. Further, though insolvency practitioners and statutory preferred creditors will be generally pleased by the court's adoption of a wide interpretation of what is a 'circulating security interest' for the purpose of determining statutory priorities, it will concern secured creditors. Partner Philip Blaxill, Senior Finance Counsel Diccon Loxton and Associate Lucas Tan reflect on the decision and its ramifications.

    Read More
  • Client Update: Rising from the ashes - Treasury seeks input on combating illegal phoenix activity

    6 October 2017

    Keeping up the momentum from the recent passing of its insolvent trading safe harbour and ipso facto legislation, the Federal Treasury has released a consultation paper containing a package of reforms to 'deter and disrupt illegal phoenix activity'. Partner Alf Pappalardo and Lawyer Belinda Hennessy report.

    Read More
  • Focus: A class divide? The Boart Longyear creditors' scheme

    29 May 2017

    The NSW Court of Appeal has considered whether different groups of secured creditors should be placed into separate classes for the purposes of voting on a proposed creditors' scheme of arrangement. Partners Christopher Prestwich and Tom Highnam report.

    Read More
  • Client Update: Amendments to PPS lease law - what you need to know

    22 May 2017

    Legislation has come into force that will amend the Personal Property Securities regime. The amendments are designed to reduce the PPSA's impact on the equipment hiring industry. Previously hirers' equipment leases and bailment arrangements of an indefinite term, or short term leases of a year or more were deemed to be PPS leases, and security interests. If they were not perfected by registration, the owner of the equipment could lose priority, and could lose the equipment altogether if the lessee or bailee became insolvent. Many hirers were caught inadvertently. Now, those arrangements will only be caught if they are initially for two years or more, or the lessee or bailee ends up holding the equipment for two years or more. Partners Nicholas Creed and Ben Farnsworth explain.

    Read More
  • Client Update: Ipso facto clauses, safe harbour for directors - our comments on the draft exposure legislation

    10 April 2017

    The Federal Government has released draft exposure legislation designed to facilitate company reconstructions. Senior Finance Counsel Diccon Loxton, Senior Associate Alicia Salvo and Associate Frances Navarro-Towan discuss some of the implications and issues.Â

    Read More
  • Unravelled: A step closer to industry funding of ASIC

    7 April 2017

    Last week, the Federal Government moved another step closer to implementing an industry funding model for the recovery of ASIC's costs, by introducing the ASIC Supervisory Cost Recovery Levy Bill 2017 (as well as two related Bills) into Parliament. These Bills implement the recommendations of the Financial Services Inquiry and the Senate Economics Committee that ASIC be industry funded, and follows a number of rounds of industry consultation on exposure drafts and proposal papers.

    Read More
  • Focus: Is hourly billing for liquidators back?

    21 March 2017

    The NSW Court of Appeal has recently considered the basis on which liquidators' 'reasonable remuneration' should be determined. Partner Chris Prestwich, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report on the decision in Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr.

    Read More
  • Focus: Forge-ing ahead - the treatment of fixtures under the PPSA

    21 February 2017

    The Court of Appeal has confirmed that under the Personal Property Securities Act 2009 (Cth) 'fixtures' are to be understood in the same way as at general law and the same common law test applies to determining whether goods affixed to land have become fixtures (ie part of the land). In unanimously upholding a 2016 decision of the Supreme Court of New South Wales, the appeal decision serves as yet another remainder of the importance of registering security interests on the Personal Property Securities Register, including those arising under equipment leases. Partner Kim Reid, Senior Associate Przemek Kucharski and Associate Jonathon New, who acted for the successful party in this matter, report.

    Read More
  • Client Update: Take care! Court confirms the devil in the details for PPSA registrations

    10 February 2017

    In a recent case a leasing company lost $23 million worth of leased equipment because it had registered the lease against the lessee company's ABN rather than its ACN - involving just two extra digits. The equipment vested in the lessee company when it went into voluntary administration. The court upheld the constitutional validity of the provision under which this occurred. Senior Finance Counsel Diccon Loxton and Partners Karla Fraser and Renee Boundy report on the case: Alleasing Pty Ltd v Onesteel Manufacturing Pty Ltd (Admins Apptd) [2017] NSW SC 21, a decision of the New South Wales Supreme Court.

    Read More
  • Focus: Finally - a class action regime for Queensland

    17 August 2016

    Class actions in Queensland are one step closer with the introduction of proposed new legislation into the Queensland Parliament. Partner Michael Ilott, Special Counsel Robyn Morrison and Senior Associate Suzie Fraser report.

    Read More
  • Client Update: Defending unfair preference claims: set-off and security revisited

    26 May 2016

    A recent Federal Court decision has highlighted two grounds on which creditors should consider defending unfair preference claims which are brought by liquidators. Partner Chris Prestwich and Lawyer Tim Chiang look at a case that deals with what constitutes an unsecured debt and the extent to which creditors are able to set off unfair preference claims.

    Read More
  • Client Update: Bankruptcy and insolvency law reforms and the innovation agenda

    3 May 2016

    The Federal Government has released a Proposals Paper on possible changes to bankruptcy and insolvency laws that will form part of its broader National Innovation and Science Agenda. Reform to bankruptcy and insolvency law has been identified as an area that could contribute to changing 'the culture in our economy'. Partner Chris Prestwich, Managing Associate Valeska Bloch and Lawyer Tim Chiang look at the main aspects of the reforms.

    Read More
  • Client Update: 'Chain of Responsibility' amendments impose new environmental obligations in Queensland

    28 April 2016

    The Queensland Parliament has passed the 'Chain of Responsibility' Bill with important amendments prior to enactment. The amending Act establishes a new regime under the State's primary environmental legislation that exposes related bodies corporate, executive officers, financiers, shareholders and a select category of 'related persons' to the receipt of orders from the environmental regulator for those entities to satisfy the environmental obligations of companies operating in Queensland. Partner Bill McCredie, Senior Associate Gobind Kalsi and Paralegal Maggie Shelton report.

    Read More
  • Client Update: New environmental responsibilities for corporates, officers, financiers and others in Queensland

    16 March 2016

    The Queensland Government proposes new powers to compel related bodies corporate, executive officers, financiers and shareholders, and a select category of 'related persons', to satisfy the environmental obligations of companies operating in Queensland. The Chain of Responsibility concept has been proposed in response to concerns arising from recent events in Queensland such as the difficulties of the Yabulu Nickel Refinery. Partner Bill McCredie and Senior Associate Gobind Kalsi report.

    Read More
  • Focus: You've got to be perfected - Equipment leasing and the PPSA

    7 March 2016

    A recent decision of the Supreme Court of New South Wales has again illustrated the potentially severe consequences for lessors of equipment and other goods under the 'vesting' provisions of the Personal Property Securities Act 2009 (Cth). The lease can be a security interest. If the lessors don't perfect the lease by registration, they can lose the equipment. Partner Kim Reid, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report.

    Read More
  • Focus: High Court decision on retention obligations provides some clarity to liquidators

    14 December 2015

    The High Court has ruled that a liquidator has no obligation to retain monies on account of tax until a notice of assessment has been issued. The decision will provide much needed clarity for liquidators and other statutorily deemed trustees, and agents. Partners Charles Armitage and Christopher Prestwich, Senior Tax Counsel Marc Johnston and Associate Jay Prasad report on the decision.

    Read More
  • Focus: Insolvent contractors beware: principals can rely upon set-off rights when resisting claims

    29 April 2015

    The Victorian Supreme Court has provided guidance on set-off rights in the context of insolvency, particularly in relation to inconsistency between provisions of the Corporations Act and security of payment legislation. Partner Nick Rudge and Lawyer James Waters report.

    Read More
  • Client Update: Court confirms priority to receivership profits

    27 April 2015

    A Supreme Court of Queensland judgment handed down today has provided greater certainty for secured creditors of companies that earn profits following the appointment of a receiver. The judgment dispels suggestions that the law was uncertain and means that secured creditors can continue to fund receivers confident that any trading profits will be distributed to them as secured creditors and not to priority creditors. Partner Michael Ilott and Managing Associate Bruce Wacker report.

    Read More
  • Client Update: Octaviar - the perils of procrastination

    13 March 2015

    In two decisions arising from the Octaviar liquidation, the High Court has given guidance on liquidators' ability to seek extensions of time for bringing voidable transaction claims. The decisions also highlight the risks of such applications. Partner Christopher Prestwich and Lawyer Julia Baine report.

    Read More
  • Focus: When is a trust a commercial necessity?

    10 March 2015

    The High Court has held that the proceeds of a forestry investment scheme were not held on trust for the investors by the operators of the scheme. The decision emphasises that a trust will not arise unless the parties expressly declare their intention to create a trust, or if such an intention can be clearly inferred from the language of the parties and the commercial circumstances. Partner Matthew Whittle and Lawyer Glyn Ayres report.

    Read More
  • Focus: Distressed debt M&A - share transfers without a scheme

    17 February 2015

    The Supreme Court of New South Wales has given further guidance on the scope of its power to grant leave to a deed administrator to compulsorily transfer the shares of a company. The decision, in the matter of Nexus Energy Ltd (subject to deed of company arrangement) [2014] NSWSC 1910, confirms that this can be done where the transfer does not 'unfairly prejudice' shareholders. This case involved the novel context of an insolvent ASX-listed parent company with solvent operating subsidiaries. Partner Kim Reid and Associate Thomas Bagley report.

    Read More
  • Focus: Insolvency Law Reform Bill - harmonisation not radical reform

    27 November 2014

    The Federal Government has released its package of reforms to Australia's personal and corporate insolvency laws. Included is a draft Bill that proposes to streamline the regulatory framework applying to insolvency practitioners with the aim of increasing efficiency in external administrations and boosting confidence in the competence of practitioners. Partner Chris Prestwich, Senior Associate Angela Martin and Lawyer Kaelah Ford report on some of the key features of the Bill.

    Read More
  • Focus: Federal Court rules liquidator needn't account for tax on sale of assets

    21 October 2014

    The Full Federal Court has held that a liquidator has no obligation to retain monies on account of tax until a notice of assessment has been issued. While the decision is a win for taxpayers (and creditors of insolvent entities), it remains to be seen how the Commissioner of Taxation will respond. Partner Katrina Parkyn, Senior Associate Joanne Langford and Associate Jay Prasad report on the decision.

    Read More
  • Focus: High Court confirms liquidator has first pick of the fruits of litigation

    13 May 2014

    The High Court recently considered the competing entitlements of a liquidator and a secured creditor to the proceeds of a claim brought by the liquidator which was against the secured creditor's interests. Partner Chris Prestwich and Law Graduate Kaelah Ford report on the High Court's decision that the liquidator has an equitable charge over the proceeds securing the realisation costs, that will take priority over the secured creditor's charge.

    Read More
  • Focus: High Court upholds Willmott decision - liquidators may disclaim leases

    5 December 2013

    The High Court has held that a liquidator may disclaim a lease that a company had granted to a tenant, leaving the tenant to prove for any loss in the winding up. This decision clarifies the scope of the liquidators' statutory power of disclaimer. It highlights risks for tenants and for financiers taking security over tenants' interests in leasehold property, and may have wider implications for parties relying on property rights against a company in liquidation. Partner Matthew Whittle and Senior Associate Rebecca Collins report on the decision and its potential implications.

    Read More
  • Focus: The Lehmans aftermath - using a scheme of arrangement to release third party claims

    4 October 2013

    The Federal Court recently made orders convening a meeting of creditors of Lehman Brothers Australia Limited (in liq) to consider a scheme of arrangement providing for the release of creditors' claims against the company's insurers. The case illustrates the use of schemes of arrangement as a flexible and effective way of implementing a broad settlement between creditors and interested third parties in the wake of a corporate collapse. Partner Chris Prestwich and Law Graduate Elise Ho report.

    Read More
  • Focus: Jumping the cross-border insolvency queue

    12 August 2013

    A recent Federal Court decision requiring all the Australian assets of an insolvent foreign company be paid to the Australian Taxation Office, rather than being remitted offshore to be distributed in the liquidation, has significant consequences for cross-border insolvency law and the collection of domestic tax debts from insolvent foreign companies. Partner Christopher Prestwich and Lawyer David Harris report.

    Read More
  • Focus: UK Supreme Court overturns controversial Nortel and Lehman decision

    1 August 2013

    The UK Supreme Court has overturned the contentious Court of Appeal decision holding that the Lehman companies were to treat financial contributions to a group pension scheme as expenses of the companies' administrations, ranking higher than debts to other creditors. The UK decision aligns with the Australian position on this issue, and benefits lenders to, and unsecured creditors of, UK companies. Partner Philip Blaxill, Senior Associate Alicia Salvo and Lawyer Amy Burton report on the decision and its implications.

    Read More
  • Focus: PPSA update: transitional security interests may be no protection

    9 July 2013

    The NSW Supreme Court has held that although the ownership interest of a lessor in certain motor vehicles leased to a company were 'transitional security interests', they were not temporarily 'perfected' and did not take priority over a subsequently-registered financier's general security interest. The decision also supports the proposition that when, under section 267 of the Personal Property Securities Act, an unperfected ownership security interest in goods vests in a company upon its entry into voluntary administration, the company holds those goods subject to any perfected security interest it has granted over those goods, such as under a lender's general security agreement. Partners John Warde and Karla Fraser, and Law Graduate Riley Downie report.

    Read More
  • Focus: Examinees out of the loop

    27 May 2013

    A recent decision of the Full Court of the Federal Court confirms that the Australian and Securities Investments Commission may authorise receivers as eligible to apply for examination summonses without giving the potential examinee an opportunity to be heard. Partner Philip Blaxill and Law Graduate Katherine Glossop report.

    Read More
  • Focus: Clarification on statutory demands

    18 March 2013

    A Western Australian Supreme Court of Appeal decision has clarified the law on statutory demands, holding that a statutory demand for a portion of a larger debt is permissible. Partner Philip Blaxill, Senior Associate Rebecca Collins and Lawyer Tom Langdon report.

    Read More
  • Focus: When can receivers resist inspection of company documents?

    26 February 2013

    Two recent decisions have considered the circumstances in which directors can inspect the books and records of a company in receivership, and the basis on which receivers can prevent this. Partner Philip Blaxill and Lawyer Aparna Nanayakkara report.

    Read More
  • Focus: The PPSA 12 months on

    19 February 2013

    With the midpoint of the two-year transition period under the Personal Property Securities Act having just passed, it is a good time to reflect on some issues that have come to light in the past 12 months. The Allens PPS team reports.

    Read More
  • Linklaters Insights: Business judgment standard applicable to sale of assets located in U.S. in a Chapter 15 case

    14 December 2012

    On November 16, 2012, the United States Bankruptcy Court for the District of Delaware issued an opinion in the Chapter 15 case of In re Elpida Memory, Inc. addressing which legal standard applied to the Bankruptcy Court’s review of an asset sale already approved by the court presiding over Elpida’s main reorganization proceeding in Japan.

    Read More
  • Focus: No special treatment for foreign insolvency recovery judgments in the UK

    1 November 2012

    No special rule exists for the enforcement of foreign judgments relating to insolvency proceedings, according to a UK Supreme Court ruling that has important implications for those dealing with the assets of an insolvency in the UK. Partner Michael Quinlan and Law Graduate Dana Beiglari report.

    Read More
  • Focus: Draft Tax determinations highlight tax obligations of agents and trustees

    8 October 2012

    Two long-awaited draft Tax Determinations released by the Australian Taxation Office highlight the obligations of insolvency practitioners, and others who act as an agent or trustee, to retain sufficient money to pay tax which is, or will become, payable on any income, profits or gains arising from their appointment. Partners Charles Armitage and Michael Quinlan and Senior Associate Joanne Langford report

    Read More
  • Focus: What does an ambiguously worded charge 'secure'?

    25 September 2012

    A recent Supreme Court of Western Australia decision suggests that when resolving ambiguities regarding which property is intended to be covered by a charge, the surrounding 'commercial circumstances' may be considered. If necessary, the court may rectify the wording of the charge document, even if the chargor company is under administration. Partner Philip Blaxill, Lawyer Scott Ivey and Research Assistant Emma Cundale report.

    Read More
  • Client Update: Lessons for lenders and directors from the Bell Group appeal decision

    20 September 2012

    The Western Australian Court of Appeal has handed down its 1024-page judgment in the Bell Group litigation, Australia's longest-running proceedings. The case arose out of an attempted work-out, in which a group of companies in financial difficulties gave security to banks in exchange for giving the borrower more time, and to avoid liquidation. More than a year later, liquidators were appointed to the companies and the banks enforced their security.

    Read More
  • Focus: Creditors' property sold despite PPS registration

    11 September 2012

    A recent Federal Court decision has permitted administrators of a large business group to dispose of certain unclaimed plant and equipment, even though it was registered on the Personal Property Securities Register. Partner Michael Quinlan (view CV) and Lawyer Shae Roberts report on what can happen when parties fail to adequately identify their secured property.

    Read More
  • Focus: No heads-up required for ASIC examination

    30 August 2012

    A recent Federal Court decision confirms that the Australian Securities and Investments Commission is not required to give notice to a potential examinee when it authorises receivers and managers to conduct an investigation of the examinable affairs of a company. Partner Michael Quinlan and Law Graduate Arlou Arteta report.

    Read More
  • Focus: High bar to restraining collection of tax

    16 July 2012

    A recent Supreme Court of New South Wales decision, dismissing an application to restrain the Office of State Revenue from recovering assessed taxes while the time to challenge the assessments was still running, confirms the courts' reluctance to interfere with the recovery of taxes. Partner Michael Quinlan and Lawyer Yu Zhang report

    Read More
  • Focus: Good news for receivers and administrators who act in good faith

    28 June 2012

    Australian administrators and receivers – and their lawyers – will gain confidence from a recent English decision that confirms no claim in tort can be brought against an administrator, as an agent, for procuring the company to which he or she has been appointed to act in breach of contract, provided the administrator has acted in good faith. Partner Michael Quinlan and Lawyer Joshua Busuttil report

    Read More
  • Focus: Examining 'the Body' of set-off law

    14 June 2012

    A recent High Court of Justice decision in the Isle of Man has held that an amount owed by a company acting as trustee and nominee of Elle Macpherson could not be set off with money owed to her personally. Partner Michael Quinlan and Lawyer Shae Roberts report on the case (based partly on Australian authority) that overturns a previous decision that set-off was available where a beneficial entitlement and beneficial liability for countervailing credits and debits corresponded

    Read More
  • Focus: Keeping the tax man at bay: winding up application adjourned for tax appeal

    29 May 2012

    A recent Federal Court decision granting an adjournment of a winding up application may indicate an increasing willingness by the courts to take into account the impact of a tax appeal on the ultimate financial viability of a company, even if it is insolvent. Partner Michael Quinlan and Law Graduate Arlou Arteta report

    Read More
  • Focus: Want to set aside a statutory demand? First try to settle or be prepared to explain yourself!

    15 May 2012

    The Federal Court has recently determined that a company applying to the Federal Court to set aside a statutory demand must file a 'genuine steps' statement. This means that the party must try to settle the dispute before bringing the application or explain why it has failed to do so. Partner Michael Quinlan and Lawyer David Harris report

    Read More
  • Focus: Some not so sour grapes. Maybe you can set-off more than you thought?

    9 May 2012

    A recent Victorian Supreme Court decision confirms that post-liquidation debts arising from pre-liquidation obligations can be set-off. Partner Michael Quinlan and Lawyer Amy Burton report

    Read More
  • Client Update: Landmark changes to discovery in the NSW Supreme Court

    1 May 2012

    In March of this year, the Supreme Court of New South Wales announced major changes to its approach to discovery that are likely to profoundly alter the conduct of commercial disputes in that court. On 30 April 2012, the Chief Justice and key judges of the court's Equity Division addressed practitioners to further explain and clarify aspects of the new appraoch. Partner Richard Harris and Lawyer Elnaz Nikibin report on the changes, some of the matters being emphasised by the court and some similar themes emerging in the Federal Court

    Read More
  • Focus: Receivers' examination powers upheld as constitutionally valid

    28 March 2012

    A recent WA Court of Appeal decision has affirmed the constitutional validity of a court's power to conduct public examinations of a corporation in receivership and where property of a corporation is in the possession of a mortgagee. Partner Philip Blaxill, Senior Associate Corey Steel and Law Graduate Miranda Cummings report on a case of interest to secured creditors and receivers across Australia

    Read More