Factoring agreements are very popular with subcontractors and suppliers in the construction industry, assisting cash-flow by providing a line of credit against accounts receivable. However, like any financial product, they can present complexities, pitfalls and at times surprises when pursuing debt recovery and enforcement action. 

Where a subcontractor is factoring its debts:

Australia’s restructuring landscape has changed significantly in recent weeks on two fronts. One of the changes arises from the safe harbour and ipso facto reforms to Australia’s insolvency laws receiving royal assent on 18 September 2017. The second event arose rather more unexpectedly from the Federal Court decision of Re Korda, in the matter of Ten Network Holdings Pty Ltd (Administrators Appointed)(Receivers and Managers Appointed) [2017] FCA 914 (Ten Decision).

In a series of recent decisions1, the Federal Court of Australia has held that section 588FL of the Corporations Act 2001 (Cth) (Corporations Act) operates such that any new security granted by a company in external administration2. that could only be perfected by registration on the Personal Property Securities Register (PPSR), and which is not the subject of an effective registration made before the appointment of the external administrator, will be ineffective3.

The new section 588GA of the Corporations Act 2001 (Cth) (Act) provides a “safe harbour” from insolvent trading claims for directors who, when suspecting a company may be or is insolvent, start developing a course of action that is reasonably likely to lead to a better outcome for the company.

Hughes v Pluton Resources Ltd [2017] WASCA 213

This case concerned the application of the Personal Property Securities Act 2009 (Cth) (the PPSA) to funds held by a company in liquidation following the termination of a DOCA. In the course of its decision, the Court considered the meaning of various provisions of the PPSA, including:

The new Building Industry Fairness (Security of Payment) Bill 2017 (Qld) was assented to on 10 November 2017, which will see the introduction of project bank accounts (PBAs) into the Queensland construction industry. As the project bank account provisions will be trialled from 1 January 2018, contractors, at least those involved in State Government projects, should familiarise themselves with the relevant provisions.

What Are Project Bank Accounts?

A PBA is a trust over:

In brief

The Government has released a consultation paper as part of their commitment to ongoing reform of Australia’s corporate insolvency regime.  Phoenix activity refers to both legitimate business rescue activities and serial insolvency to avoid debts.

Australia’s corporate insolvency regime has undergone significant reform with the passing of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 (the Bill) through both houses of parliament.

This week’s TGIF considers the case of Official Assignee in Bankruptcy of the Property of Cooksley, in the matter of Cooksley v Cooksley, in which the Federal Court granted assistance to the High Court of NZ in administering a bankruptcy.

BACKGROUND