This is the twenty-ninth in our series of General Counsel Updates which aim to summarise major developments in key areas.

Recent Developments

This week’s TGIF examines a recent decision of the NSW Supreme Court which considered whether funds held in certain bank accounts of a failed Ponzi scheme should be returned to investors or paid to creditors of the companies.

What happened?

Since freezing orders were obtained by ASIC in 2017, details surrounding the infamous Courtenay House ‘Ponzi’ scheme operated from a small office at Westfield in Bondi have slowly emerged.

^{"Whenever there is change, and whenever there is uncertainty, there is opportunity."Mark Cuban, American businessman and investor}

In the current global market, very few things are clear other than that volatility and change are ever-present.

The European Preventive Restructuring Framework offers different ways to help companies impacted by COVID-19. Here’s what you need to know.

In brief

The COVID-19 pandemic has led to four groups of companies emerging, each with different needs for restructuring. The new European framework may prove helpful for those companies who cannot currently cover debts, but who don’t have an acute liquidity problem. Financial restructuring may be the best option to allow companies with valid business models to return to profitability.

Different countries frame the exact description of the role of directors of a company in different terms. One feature is common to all – the obligation not to continue trading if a company is insolvent. Again, the detailed implications of doing so vary from one jurisdiction to another. However, this obligation not to continue wrongful trading is at the heart of trust in a market-based economic system

The Australian government has taken swift action to enact new legislation that significantly changes the insolvency laws relevant to all business as a result of the ongoing developments related to COVID-19

A comparison of the new Dutch Scheme and the new UK Restructuring Plan.

Introduction

What does the Corporate Insolvency and Governance Act 2020 (CIGA) do?

CIGA introduces various changes to various provisions of the Insolvency Act 1986 and the Companies Act 2006.

Some of these changes are designed to be permanent changes to the insolvency landscape (largely implementing proposals for insolvency law reform introduced in 2018) – for example, the introduction of a moratorium, a ban on termination provisions (also known as ipso facto clauses) and a new pre-insolvency rescue and restructuring regime.

1. General aspects

The primary legislation governing insolvency and restructuring proceedings is Law 85/2014 on preventing insolvency and insolvency proceedings¹ (the ”Insolvency Law”).

The Insolvency Law has been amended on October 2, 2018 by Government Emergency Ordinance no. 88/2018 for amending and supplementing regulations on insolvency² (the ”G.E.O. no. 88/2018”).