Although the Australian voluntary administration regime served as the model for the UK administration system, one notable difference has emerged between the two systems: pre-packs.

Pre-packs – the use of a statutory insolvency regime to implement a pre-agreed debt / corporate restructuring – have not really taken off in Australia. In the UK, of course, they form a significant proportion of all administrations.

On 15 February 2012 the Commonwealth Government introduced the Corporations Amendment (Similar Names) Bill 2012.

Purpose

The purpose of this Bill is to amend the Corporations Act such that directors of failed companies can be jointly and individually liable for the debts of a company that has a similar name to a pre-liquidation name of a failed company.

The Bill itself is purportedly part of the Government’s election commitment from the Government’s Protecting Workers Entitlements Package announced in July 2010.

The Federal Government has introduced the Corporations Amendments (Similar Names) Bill 2012 which will be directed at companies that engage in ‘phoenix’-related activities through imposing personal liability on directors.  

The Bill seeks to impose liability for payments on the director behind the failed company to ensure they do not exploit the concept of limited liability. These measures rely on the notion that many phoenix companies use similar trading names as the company that was liquidated.  

On 5 October 2011 Justice Barrett of the Supreme Court of NSW handed down a decision in Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of the Centro Retail Trust [2011] NSWSC 1175 (“Centro”) where he found that the responsible entity of Centro Retail Trust would be justified in modifying the constitution of the trust without unitholder approval to a insert a provision permitting the issue of units at a price different to that provided for by the pre-existing provisions.

Introduction  

Another failed property developer has just been made bankrupt in Australia, this time with a difference – he was already bankrupt in New Zealand. Bank of Western Australia (Bank) v David Stewart Henderson (No. 3) [2011] FMCA 840 is another Australian cross-border insolvency case in which we have successfully tested the boundaries of the Cross-Border Insolvency Act 2008 (Cth) (the CBIA), this time with the Bankruptcy Act 1966 (Cth).

Facts

The Bridgecorp Group collapsed and receivers were appointed on 2 July 2007. The companies comprising the group were subsequently also placed in liquidation. The First and Second Defendants in the case were two of the Bridgecorp Group (Receivers and Managers appointed) (in Liquidation).

The directors faced numerous civil and criminal charges for alleged Wrongful Acts including alleged false statements in prospectuses, extension certificates and investment statements issued to prospective investors.

After four long years, Australia-based Centro Properties Group (“CNP”) has consummated a global restructuring that combines a debt-for-equity swap with an aggregation of its assets into a new real estate investment trust, Centro Retail Australia (“CRF”). Bracewell & Giuliani was first engaged by Centro’s private placement noteholders in December 2007. As the restructuring progressed Bracewell’s role expanded to becoming lead counsel for CNP’s entire international lending syndicate consisting of more than 90 distressed debt investors, institutional investors and commercial bank

Background: the Timbercorp Group

Australia needs to rein in ipso facto clauses in order to develop a turnaround culture for financially troubled companies.

Within hours of Kodak's move into Chapter 11 bankruptcy, the internet was alive with bad jokes:

"Kodak's business didn't develop the way they expected."

"Kodak was overexposed to the GFC."

"Kodak's Chapter 11 hearing was held in camera."

Australian businesses and liquidators might be forgiven for thinking that the bigger joke is Australia's lack of a Chapter 11 turnaround culture.

Air Australia has hit the news recently due to the appointment of voluntary administrators to the airline and the consequences this has had on the business, its customers, suppliers and staff.

Whilst Air Australia is not a franchise, it still offers a good case study for examining financial distress in the operation of a business and considering options that may be available.

This update considers what are indicators of financial distress and offers tips both for franchisors and franchisees in assessing developing situations and options for moving forward.