In two recent decisions, the Federal Court has allowed administrators to continue to occupy leased premises rent-free for an extra month. Should landlords be worried that this trend will continue? Whilst the decisions were undoubtedly made in the extraordinary circumstances of COVID-19, it is not difficult to see a precedent being established with similar orders being made more frequently in the future.

The usual deal: Five free days

On 22 May 2020, Justice Black of the Supreme Court of NSW issued judgment In the matter of Wollongong Coal Limited and In the matter of Jindal Steel & Power (Australia) Pty Ltd [2020] NSWSC 614. The judgment sets out his Honour’s reasoning for granting the orders sought in a largely unprecedented application to effectively ‘re-enliven’ two schemes of arrangement which automatically terminated prior to being completed.

This week’s TGIF considers a recent decision of the NSW Supreme Court by which two DOCAs were terminated with the deed fund transferred to liquidators for the ultimate benefit of the secured creditor and, indirectly, the proponent of the deeds.

Key Takeaways

This week’s TGIF considers a recent case where the Federal Court ordered payments made while a DOCA was in force, to which the deed administrators were signatories, were recoverable as unfair preferences.

Key Takeaways

This week’s TGIF considers the most recent case involving the Octaviar group of companies where the Supreme Court gave judicial advice to liquidators of related companies within the Octaviar group regarding a proposed settlement.

Key takeaways

The Australian chapter of GRR’s Asia-Pacific Restructuring Review 2021, authored by Herbert Smith Freehills, is now available and reproduced below.

This latest edition covers major Australian legislative developments, transactions and case law relating to restructuring and insolvency in Australia over the past 12 months including:

Legislation

• Temporary COVID-19 insolvency law amendments
• Anti-phoenixing amendments to the Corporations Act

Key restructurings

On 10 December 2020, the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 (Cth) passed both houses of parliament (Insolvency ReformAct). The substantive provisions of the Bill commence from 1 January 2021, coinciding with the end of the current temporary insolvency protections which were put in place by the federal parliament in March 2020 to protect businesses facing financial distress caused by COVID-19.

Insolvency protections expiring on 31 December 2020

In brief

The new small business insolvency reforms enacted by the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Cth) (Corporations Amendment Act) - which inserts a new Part 5.3B into the Corporations Act 2001 (Cth) (Corporations Act) - are due to come into effect on 1 January 2021.

In brief

The new small business insolvency reforms enacted by the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 (Corporations Amendment Act) - which inserts a new Part 5.3B into the Corporations Act 2001 (Cth) (Corporations Act) - are due to come into effect on 1 January 2021.

Companies post-restructuring are not subject to the rules protecting creditors of insolvent companies in section 588FL of the Corporations Act 2001.