I am often asked “what do you do”? If I reply “a regulatory solicitor”, this inevitably elicits a blank expression from the enquirer (be that a non-lawyer or lawyer), so I go on to the more long-winded version, that I am a criminal solicitor who advises business owners and other stakeholders on how to stay on the right side of the criminal law, and defends them when they get it wrong.

It was far from a secret that a veritable smorgasbord of phased changes to insolvency law were coming in on 1 October. The legal and insolvency press has been riddled with it, and frankly the flavours were all a bit predictable. The commentators falling over themselves to ask mundane questions such as “are you ready for…?” and “what will happen now…?” are really just asking “we are really up to date on the new law, aren’t we brilliant?”; of course you are, but you’re not getting any marks for originality.

There's been a drop-off, but Peter Bowden says things might be about to change.

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The news in January of this year that the government planned to increase the bankruptcy petition threshold to £5,000 (subject to parliamentary scrutiny) from 1 October was greeted with mixed reaction. On the one hand, it was welcomed in that the threshold of £750 which had been in place since 1986 was wildly out of date.

Key Points:

A section 439A report must contain all material information which is known or reasonably ascertainable by administrators.

Over the past 15 years or so, one of the most commonly recurring themes in my practice has been advising both insolvency practitioners and directors on the prospects of legal proceedings being pursued for breach of director duties and/or wrongful trading. Very often the two claims are put together for the purposes of an actual or threatened claim, and very often sitting behind the scenes as well is a possible investigation and/or claim that one or more directors should be disqualified.

Key Points:

A DOCA can extinguish claims under a guarantee, even where those claims arise following the DOCA's termination.

If the underlying debt has already been extinguished by a DOCA, can a secured creditor still enforce the charge? A recent case explored the role of section 444D(2) of the Corporations Act in this situation, with implications for parties seeking to rely on guarantees from companies that have been through a DOCA (Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95).

Key Points:

Section 562A of the Corporations Act does not apply where liquidator realises a sum of money by assigning the proceeds of the reinsurance claim to a third party.

Liquidators of insurance companies face a major quandary when assessing reinsurance recoveries.

A new Court decision may undercut the legislative policy that reinsurance proceeds should be quarantined from the normal rules for paying out creditors of insolvent companies.

Key Points:

These three cases illustrate that strict compliance with legislative requirements continues to be imperative when serving statutory demands.

Despite what appears to be a fairly straightforward legislative regime, creditors' statutory demands appear to generate an entirely disproportionate volume of litigation in the courts. The drastic consequences of failing to comply with a creditor's statutory demand warrant very strict compliance by creditors with the technical requirements of the regime.

Orla McCoy explains the connections between retention of title clauses, insolvency, and the Personal Property Securities Act.

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