On 10 October 2019 the Australian Small Business and Family Enterprise Ombudsman, Kate Carnell, announced an upcoming inquiry into insolvency practices. The inquiry was announced in light of rising concerns as to the efficacy of the voluntary administration process for SMEs and family-owned businesses, and concerns with the conduct of insolvency practitioners more generally.

The Supreme Court in Sevilleja v Marex Financial Ltd [2020] UKSC 31 has brought much needed clarity to the legal basis and scope of the so-called ‘reflective loss’ principle. The effect of the decision is a ‘bright line’ rule that bars claims by shareholders for loss in value of their shares arising as a consequence of the company having suffered loss, in respect of which the company has a cause of action against the same wrong-doer.

The liquidators of two Cayman Island companies obtained orders under s 195(3) of the Bermudan Companies Act 1981 for PwC, as the companies' auditor, to provide information and documents to the liquidators. PwC decided to appeal but, in the meantime, did US$250,000 of preparatory work necessary to enable compliance, if required, with the orders.

As a result of the appeal, both orders were set aside. In PricewaterhouseCoopers v SAAD Investments Co Ltd & Anor (Bermuda) PwC applied to recover from the liquidators the costs of preparing to comply with the orders.

In Official Assignee in Bankruptcy of the Property of Cooksley, in the matter of Cooksley v Cooksley, the Federal Court of Australia was asked to consider a letter of request from the New Zealand High Court for assistance under the Bankruptcy Act 1996 (Cth) and the Foreign Insolvency Act 2008 (Cth). By the letter of request from the High Court, the New Zealand Official Assignee sought assistance to enforce income contributions by a New Zealand bankrupt resident in Australia.

In Ramsay Health Care Australia Pty Ltd v Compton, the High Court of Australia considered the Bankruptcy Court's discretion, under s52 of the Bankruptcy Act 1966 (Cth), to go behind a judgment to satisfy itself that a debt is truly owing before making a sequestration order against a debtor.

In Re Boart Longyear Ltd (No 2) the Supreme Court of New South Wales recently approved two creditor schemes of arrangement on the application of Boart Longyear Limited. The schemes were considerably amended after the Court indicated at the first hearing that it was not likely to approve the original schemes on fairness grounds. Significantly, the Court ordered the parties to attend a mediation to resolve the fairness issues – something that has not been done before in a scheme of arrangement in either Australia or the United Kingdom.

The New South Wales Court of Appeal recently handed down an important judgment relating to the composition of classes in a creditors' scheme of arrangement.  In First Pacific Advisors LLC v Boart Longyear Limited, the Court of Appeal unanimously dismissed an appeal brought by First Pacific Advisors LLC (FPA).  The appeal was against an order made under s 411 of the Corporations Act 2011 convening meetings of creditors of Boart Longyear Limited (BLL) and several associated companies, to consider and if it saw fit, agree to two schemes of arrangements (one relating to

The Supreme Court of Victoria has recently considered whether trust property is subject to the priority regime provided for in section 556 of the Corporations Act 2001 (Cth) (the Australian equivalent of New Zealand's Schedule 7 of the Companies Act 1993).  It also considered whether a trustee's right of indemnity is subject to the obligations of receivers under section 433 of that Act, to pay employee entitlements in priority out of assets subject to a circulating security interest.

In Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) the New South Wales Court of Appeal recently considered the 'fixtures' exclusion in Australia's Personal Property Securities Act (PPSA).

Power Rental agreed to lease turbines to Forge Group for two years.  Shortly after the lease began, Forge Group entered voluntary administration.

In this Australian case, a major creditor of the company in question alleged that it was involved in phoenix activity and offered to fund a public examination of the director provided that the creditor's solicitors would act for the liquidators in that examination.  The liquidators refused the offer and, in response, the creditor applied to have the liquidators removed.