Australia report (March 2021 updated)– Corporate Restructuring and Insolvency in Asia 2020

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An appendix was added to the Australia report in March 2021 which is devoted to the dedicated insovlency regime for small businesses in Australia that commenced in January 2021. 

This appendix is authored by the Asian Business Law Institute. For the avoidance of doubt, the co-authors of the Australia report are not involved in the drafting of the appendix.  

Reporters: Maria O’Brien and Timothy Sackar

Index

A. INTRODUCTION TO AUSTRALIAN INSOLVENCY LAW REGIME

i. Introduction

a. Sources of Australian insolvency law
b. Jurisdiction of the courts
c. Practice and procedure in the courts
d. Role of the court in the insolvency processes

ii. Features and regulation of Australian companies

a. Features of Australian companies
b. Australian Securities and Investments Commission

iii. Asset security in Australia

iv. Directors' duties

a. Duties of directors of distressed entities
b. Duty to prevent insolvency trading
c. "Safe harbour" reform
d. Duties of directors and officers of companies in external administration

v. Formal insolvency processes applicable to corporate debtors

a. Liquidation or winding up

I. RANKING OF CREDITOR CLAIMS IN LIQUIDATION
II. AVOIDANCE, PREFERENCE AND CLAWBACK RULES IN LIQUIDATION

b. Receivership

vi. Restructuring options

a. Informal workouts
b. Formal restructuring options
c. Why choose a deed of company arrangement or a creditors' scheme of arrangement?

vii. Employees

viii. Corporate groups

ix. Regulation of insolvency and insolvency practitioners

x. Specific issues in relation to listed companies

B. VOLUNTARY ADMINISTRATION

i. Introduction

ii. Appointment of a voluntary administrator

iii. Statutory moratorium and stay

iv. Powers of a voluntary administrator

v. Duties of a voluntary administrator

vi. Proposing a deed of company arrangement

vii. Creditor supervision

viii. Ranking of creditor claims in voluntary administration and deed of company of arrangement

ix. Termination of a deed of company arrangement

x. Expenses and remuneration of a voluntary administrator

C. SCHEMES OF ARRANGEMENT

i. Introduction

ii. The creditors' scheme of arrangement procedure

iii. Creditors' scheme of arragenemtn documentation

iv. Creditor supervision

v. Ranking of creditor claims in a creditors' scheme of arrangement

vi. Implementation of a creditors' scheme of arrangement

D. RECOGNITION OF FOREIGN INSOLVENCY PROCEDURES IN AUSTRALIA

i. Introduction

ii. Adoption of UNCITRAL Model Law on Cross-Border Insolvency

a. Recognition and relief
b. Relevant decisions

iii. Section 581 of the Corporations Act

a. Effect of recognition under section 581

iv. Section 601CL – Ancillary liquidation of a foreign registered company

v. Co-operation between courts

vi. Adoption of protocols

APPENDIX OF LEGISLATION REFERRED TO