In brief

Australia's borders may be closed, but from the start of the pandemic, Australian courts have continued to grapple with insolvency issues from beyond our shores. Recent cases have expanded the recognition of international insolvency processes in Australia, whilst also highlighting that Australia's own insolvency regimes have application internationally.

Key takeaways

In a substantial recent decision arising from the Arrium liquidation[1], the Supreme Court of New South Wales considered the materiality of significant future liabilities in assessing the company’s solvency.

The Court at first instance held that the Applicants failed to establish that the Company was insolvent. The key findings that informed the Associate Judge’s conclusions included the following:

• the funds that were available to the Company to pay its debts included funds in an offset account in the name of the director (and an account in the name of the director’s wife); and
• the Applicants’ claims were based on unreconciled accounts of the Company.

The Applicants were granted leave to appeal and appealed the decision of the Court a quo.

A hotly anticipated decision in the ongoing saga of the Babcock & Brown liquidation was handed down last week, resulting in another win for the liquidator (represented by Johnson Winter & Slattery) and further highlighting the challenges facing liquidators when they are thrust into a quasi-judicial function when assessing proofs of debt.

On 2 August 2021, Treasury released a consultation paper on proposed reforms to improve creditors’ schemes of arrangement in Australia. The proposed reforms are intended to complement the simplified liquidation and debt restructuring process introduced for small businesses on 1 January 2021, as a result of the COVID-19 pandemic.

What is a scheme of arrangement?

Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025

One of the key questions for an individual facing bankruptcy is how they can protect their assets from the trustee-in-bankruptcy (trustee) or from creditors. This is particularly relevant for the family/matrimonial home. One of the ways of protecting this asset is via the presumption of advancement.

This article explores a recent appeal case where the presumption of advancement, in relation to the family home, was rebutted.

What is the presumption of advancement?

The latest decision in the Arrium collapse should give some encouragement to Australia's restructuring sector.

Following a lengthy trial of 38 days in the NSW Supreme Court in March and April 2021, Justice Michael Ball (no relation) has handed down the decision in the two proceedings, Anchorage Capital Masters Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025.

In dismissing these proceedings, Justice Ball has given some comfort to restructuring in Australia,

This week’s TGIF examines a decision where the Court ordered a director, who caused a company to bring proceedings challenging a receiver appointment, to be joined to the claim and indemnify the company for its exposure to a costs order.

Key Takeaways

COVID-19 has made an undeniable and significant impact on many businesses around Australia. With each lockdown and implementation of harsh restrictions, business owners and directors are forced to scramble to keep their business afloat. No doubt liquidators will shortly be inundated with companies desperately trying to evaluate their options.

Insolvency, voluntary administration, bankruptcy and liquidation are terms that are consistently being thrown around. But what do they mean? Is there a difference?

Insolvency