Author Archives: Mark McKillop

The future of Zoom Mediation post pandemic

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Tip No 1 – Get your background right

More than half my mediations as mediator in the last two years have been on Zoom, Teams or other remote software due to Covid restrictions.  Will we return to face-to-face mediation when the pandemic eases?

It is worth evaluating online mediation on its own merits, as an alternative or supplement to face-to-face mediation in the post pandemic world.

In my view Zoom mediation is an effective alternative, and in some respects is much better.   Consider these points.

  1. A lack of physical venue can encourage mediation
  • Since there is no physical venue, there is no hiring cost and no need to agree on a location.
  • Since there is no need to physically attend, attendance can be much easier and cheaper for all parties.
  1. Beware the informality of Zoom  
  • The relative informality of Zoom can leave clients less prepared to negotiate, especially if they are attending from home.
  • Before the mediation begins, you can get your clients in a “deal making head space” where they are ready to negotiate. 
  • Go over the basics such as costs of going to trial, cost exposures if lose, merits – Risks of winning v losing, the narrow limits of the of a victory in Court to the issues in the case v unbounded possibilities of a negotiated settlement
  • Work on this before the mediation.
  1. Practice with the software before the day
  • To test out the Zoom links, the mediator can host a pre-mediation session via Zoom as well.
  • Encourage clients to have their Zoom software in place and tested before the day.
  • Have side methods of communication set up for private secure chats with clients.  SMS/email/Whatsapp etc.
  1. The software has many convenient organisational features
  • It is easy to schedule meetings, send appointments, organise links, and use one click joining
  • Zoom can very effectively host larger numbers:  more so than physical venues
  • Anyone can attend at push of a button – it’s a lower cost to clients to attend and they can benefit – eg more well informed attendees to assist deal making
  1. A low-cost bridge across time zones and space
  • Cross geographic distances and time zones easily (esp international/interstate)
  • It allows parties to work in the background more effectively on other matters:  which means mediation is not as costly to attendees in lost time.
  • Remote attendance can make it easier to get instructions.
  1. Zoom/Teams are well adapted to mediation
  • The software can easily establish multiple rooms for the parties and joint sessions, in imitation of in person mediation
  • It’s also easy to move small groups into rooms for discussion – eg client only, lawyer only, subset of parties.
  • If needed (although I don’t encourage it) it is logistically easy to reconvene on a later date if a break is required with no resolution.
  1. Presentation possibilities are enhanced
  • Onscreen sharing of documents is easy
  • There is an ability to use documents in open session eg power point summaries
  • There is an ability to view key documents produced in the negotiations
  • Onscreen sharing of draft terms is useful to save time
  1.  Limitations
  • Not being in the room physically releases pressure on the attendees:  that be a disadvantage since  the grind of being in the room at an all-day mediation is often a key to getting a deal done.
  • The mediator and solicitors need to keep parties engaged and in attendance, even if doing other things.  Don’t let people leave the “Room” in the Zoom.
  • Zoom can be too casual:
  • Dress appropriately for a business meeting
  • Use business virtual background, keep the mood professional.
  1. Technical Traps
  • Don’t record the mediation:  it undermines the confidential and without prejudice nature of the day.
  • Be ready for internet or other Tech failures: have everyone’s details to easily re-establish contact.
  1. Terms of settlement
  • Drafting terms always takes time, sometimes too much time because of lack of preparation
  • Encourage the parties to prepare drafts in advance of the day
  • Use Zoom to work on collaboratively on draft documents where feasible.
  • If the terms aren’t signed, there is no deal:  discourage parties who want to leave the documentation to another day.
  • Use electronic signing – exchange counterparts or use apps such as DocuSign in a single copy.

Statutory demands – setting aside under s 459G – what is a ‘genuine’ dispute or offsetting claim?

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This article by my colleague Carrie Rome-Sievers is a very succinct summary of the current principles governing a genuine dispute for statutory demands, recommended reading if you are preparing an application or defending one.

Carrie Rome-Sievers, Barrister

When a company is served with a statutory demand it may apply to Court to set it aside under s 459GCorporations Act 2001 (Cth) (see also s 459J). Where the ground for the application is that the company disputes that it owes the debt, or has an offsetting claim, s 459H requires that this be genuine (see s 459H(1) and the definition of ‘off-setting’ claim in s 459H(5)). So – when will an alleged dispute or off-setting claim be accepted as genuine? Or what should be pointed to as demonstrating that it is not?

Practitioners will in some cases quickly form a preliminary view on this based upon the old ‘smacks of recent invention’ hallmark. Certainly that preliminary view may be borne out on closer examination, as was the case in a Court of Appeal decision in which I appeared some years ago – Rescom Asia Pacific…

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Disputing a PPSR Registration – A Practical Guide

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In the past few weeks I have had the pleasure to present to the PPSA masterclass at the Leo Cussen Institute, and then, today, to record a podcast for Foleys List, on this topic.

In the presentation and podcast I address how to go about removing or amending a PPSR registration. I discuss the administrative and judicial processes for disputing a PPSR registration, the nature of the judicial process, and some tips and pitfalls of disputing the registration.  I also look at the advantages (albeit at a cost) of the judicial process over redress by the Registrar, where the Registrar has had a blanket policy of not acting where opposition is made by the secured party.

The podcast recording is available here and is also available from the Foley’s website here and on Apple Podcasts here. Thanks Jessica Zhou and Andrew Turner for organising the recording.

A copy of the materials used in the presentations are available below:

ppsa-masterclass-disputing-a-ppsa-registration-5.10..21-foleys-list-versionDownload

example-orderDownload
amendment-statementDownload

ppsa-masterclass-specimen-amendment-demand-Download

PROBLEMS RAISED BY UNCOLLECTED GOODS UNDER THE PPSA

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When landlords or bailees take possession of uncollected goods, they may be exposed to loss of priority due to the application of the PPSA.  The risk can be mitigated by registration on the PPSR, by contractual drafting to avoid the creation of a security interest or by the application of uncollected goods legislation.  But in what circumstances will such measures be effective against a liquidator or third-party claimant to the goods?  

Last Tuesday morning I presented a seminar to the ARITA Vic/Tas annual conference on the problems facing insolvency administrators, landlords and bailees arising from the introduction of the PPSA.

A copy of the paper presented and the overheads from the seminar are available at the links:

arita-uncollected-goods-and-ppsaDownload
powerpoint-arita-m-mckillop-ppsaDownload

Some the of key takeouts from the seminar:

  • It is common practice that landlords fail to register leases on the PPSR even though they have security interests over the goods of a defaulting tenant. They can be left vulnerable to vesting risk and disputes with third parties over title to goods when they want to dispose of them.
  • It is possible to structure a lease so that rights over uncollected goods do not give rise to a security interest, by use of deemed abandonment.
  • Even where security interests vest, or are otherwise lost, interests in uncollected goods can be claimed by a landlord in possession or by other bailees if they arise at law, such as common law, equitable or statutory liens. The so-called “uncollected goods” legislation in each state and territory provide protection of this kind.

See the seminar paper for an exploration of these issues looking recent cases I have appeared in dealing with these issues, and other authorities. The cases include:

Tasman Logistics Services Pty Ltd v Seaco Global Aust Pty Ltd [2020] VSC 100

Jayfield Pty Ltd v Cussen [2020] VSC 380

Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd (No 2) [2018] VCC 628

Some time in late 2019 I received the invitation to present this seminar from Adrian Hunter, secretary of the Vic/TAs committee. Who would have thought then that the presentation would be delivered almost 2 years later! Luckily fortune smiled on this year’s conference which went ahead just before the most recent lockdown. It was great to be able to present to a live audience for the first time in quite a while.

Thank you ARITA.

Case Note: Re Holdco and Intangible Property under the PPSA

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The Federal Court holds that intangibles are capable of being subject to a security interest

McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 2) [2021] FCA 377 – https://jade.io/article/803015

Short Summary

In this case the Federal Court confirmed, perhaps unsurprisingly, that intellectual property, as an intangible,  is “personal property” for the purposes of the PPSA and capable of being subject of a security interest by means of retention of title.

The defendant, GrowthOps, argued that a “conditional sale agreement” capable of giving rise to a security interest by reason of section 12(2)(d) of the PPSA is limited to tangible goods and excludes intellectual property rights.  

The essential point defeating GrowthOps was that, in substance, its contract withheld title to the subject intellectual property until payment for the same was made by its debtor and accordingly amounted to a security interest within the broad meaning of section 12(1) of the PPSA, which does not mention or require that the subject personal property be tangible.

The Facts

The case involved the sale of various business and assets of the failed Sargon Group.  Sargon Group promoted itself as a “tech-driven trustee services, fund operations and custodial services” business with more than $55 billion in assets under trusteeship or supervision.

Mesopotamian King Sargon ponders the meaning of “security interest”

The group consisted of some 39 companies, which were the subject of a range of secured claims by different secured creditors. 

The administrators of some of the companies in the group negotiated a sale of businesses and associated assets in April 2020.  The administrators sought and obtained leave of the court to dispose of encumbered property subject of the sales pursuant to section 442C(2)(c) of the Corporations Act 2001 (Cth) (CA).

After completing the sale, the administrators paid the proceeds into Court where various competing secured creditors, as defendants, laid claim to the proceeds in a subsequent trial.

GrowthOps claimed to have developed and supplied software systems that were sold by the administrators in the sale of business.   GrowthOps claimed that it had retained title to the relevant IP (called the “Developed IP” in the contract and the judgment) in clause 7.1(a) of its contract with Sargon Capital, the relevant Sargon entity.   The clause stated:

All Intellectual Property Rights in the Services and Deliverables (Developed IP), except any GrowthOps Background IP or its service methodology and knowledge, vests in Sargon immediately upon payment to GrowthOps for same, and GrowthOps hereby assigns, and must procure that its personnel assign, all Intellectual Property Rights in the Developed IP To [sic] Sargon. GrowthOps agrees to do all things which may be necessary for these ownership rights to pass to Sargon. At Sargon’s request, GrowthOps must provide, and ensure that its personnel or sub-contractors provide consents to or waivers of any moral rights in specific Developed IP. This clause does not in any way derogate from the ability for GrowthOps to utilise the same service methodology for other clients.

(emphasis added)

Sadly for GrowthOps, it had failed to register its rights under the contract on the PPSR before the appointment of the administrators.  At trial GrowthOps sought to escape vesting of its interest pursuant to section 267 of the PPSA.

Arguments

The substantive defences pressed at trial were:

  1. On creation of the Developed IP, there was an implied licence to Sargon to enable Sargon to use it pending transfer of title on payment, and the PPSA does not apply to rights under a licence: see s12(5)(a) of the PPSA.
  2. A  “conditional sale agreement” in s 12(2)(d) of the PPSA is implicitly confined to goods.  The implicit limitation to goods was said to arise from the fact that s 12(2) contains a list of expressions which can only relate to goods. It further argued that the expression “conditional sale agreement” is familiar in the context of a sale of goods and, in s 6 of the Goods Act 1958 (Vic), there is a reference to a sale of goods being conditional or unconditional. Further, s 19(5) of the PPSA refers to a conditional sale agreement of goods. 
  3. There was in fact no sale of anything, and therefore no conditional sale agreement. Rather, there was a provision of services for a fee, incidental to which there was creation of intellectual property which was transferred upon payment of the fee. 
  4. As a logical extension of 3, the transaction did not, in substance, secure payment or performance of an obligation.  Clause 7.1(a) merely spelled out the time at which title in the “incidental” Developed IP would pass to Sargon Capital.  Clause 7.1(a) did not secure payment since even if the fees remained unpaid, Sargon Capital continued to enjoy the use of the Developed IP through the implied licence.

Sargon Capital itself advanced an alternative argument that, on its proper construction, clause 7.1(a) effected an immediate assignment of copyright (upon its creation) to Sargon Capital (allowing it to use those rights as an assignee), whilst stipulating that the copyright would not vest in Sargon Capital until payment had been made (at which time the copyright would permanently vest in Sargon Capital). Sargon Capital argued that s 197 of the Copyright Act distinguishes between the “vesting” and “assignment” of copyright. It argued that the vesting of property carries with it a notion of permanency whereas an assignment may be limited or conditioned and is capable of being revoked or ended by the assignor.

The Decision

The Court (O’Bryan J) disposed of the arguments as follows.

First, the implied licence was not relevant.  The subject of the sale was not that licence, but the underlying Developed IP.

Second, that the Developed IP is an intangible was also irrelevant:

  • The transaction was within the scope of the definition of security interest within section 12(1). 
  • That definition which extends “to an interest in personal property” is not restricted to tangible goods: there are many instances of transactions caught by the PPSA that apply only to intangibles. 
  • The list of transactions in section 12(2) are examples, are not exhaustive and are not a code.  The fact that some can only apply to tangible goods does imply that the act applies only to tangibles.
  • GrowthOps could offer no reason why the purposes of the PPSA would be served by such a narrow construction.   The stated purpose (from the explanatory memorandum) of introducing the PPSA was to achieve “more certain, consistent, simpler and cheaper arrangements for personal property securities.”  Excluding intangibles would undermine that purpose.

Third, the transaction was not a fee for service.  The contract contemplated the creation and vesting of the Developed IP in Sargon Capital upon payment of the fee owing to GrowthOps.  It was accordingly an exchange of money for both services and the transfer of IP.

Fourth, the transaction did secure payment by withholding title to the Developed IP, despite the existence of the implied licence, because that licence would cease on termination of the agreement, whereas title would be permanent.  There was accordingly an incentive to pay the outstanding amounts due, to secure title.

The Court also rejected the distinction between vesting and assignment of copyright advanced by Sargon Capital.  Assignment of copyright was the means by which title was to be transferred, and vesting was the consequence of the assignment.  In other words, the terms are related and “assignment” results in “vesting”.  They are not separate or distinct forms of rights transfer.

Takeout

This case is another striking example of the need to register security interests on the PPSA.  In my view the result was not surprising, certainly in my experience practitioners have rightly assumed that intangible property is caught by the PPSA.   In addition to the reasons given by the court, the term “conditional sale agreement” is not defined in the PPSA nor is it expressly limited to goods on its face nor is there any apparent reason to imply such a limitation.  

The defences run by GrowthOps were nevertheless creative and perhaps may have been better left untested by a judicious compromise with the administrators before trial. 

PPSA Case Law Update – 2021

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Last week I delivered an update on developments in PPSA case law to an audience at Leo Cussens, an update I present twice each year. The seminar covered 10 recent cases and was part of a morning of presentations on the PPSA by various speakers.

A copy of the paper and overheads presented at the seminar can be found here:

leo-cussens-ppsa-22.4.21Download
ppsa-update-22-april-2021Download

Some of the interesting decisions include:

Keon Pty Ltd as trustee for Keon Family Trust v Goldfields Equipment Pty Ltd (In Liquidation) [2020] WASC 61, a harsh lesson for a lender relying on an (undrafted) agreement to provide a charge as a security interest (the lender failed)

Allied Master Chemists of Australia Limited, Re [2020] NSWSC 291, an extension of time case under s588FM where the court did not require a Guardian Securities order mainly because the borrower was a large listed pharmaceutical group with no material insolvency risk

Everlyte Ltd v Registrar of Personal Property Securities [2020] AATA 2584, a demonstration that an ownership interest of itself, not securing payment or performance of an obligation, is not a security interest. The applicant was the owner of a stolen helicopter who registered its interest on the PPSA as owner after the theft.

Thanks to Leo Cussens for hosting the seminar.

First Part 5.3B Restructuring Appointment

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Not just one, two in fact.

It’s only taken 6 weeks for the first appointment of a restructuring practitioner under Part 5.3B of the Corporations Act 2001 to be made.

The ASIC Published Notices search engine shows the lucky first appointee took office on 14 February, and the second on 16 February.

Much to the disappointment of some, Scomo was not on hand at the appointment in a green and gold polo shirt smiling for the cameras.

See the search engine results here for live updates:

https://publishednotices.asic.gov.au/browsesearch-notices?appointment=Restructuring%20(Part%205.3B)&noticestate=All&court=&district=&dnotice=

Debtor in Possession Reforms Commence with Not Much of a Bang

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Photo by mark glancy on Pexels.com

The insolvency reforms aimed at helping small businesses through insolvency, passed in the The Corporations Amendment (Corporate Insolvency Reforms) Act 2020, commenced on 1 January 2021 without much take up.

On Monday 1 February 2021 I had the pleasure of speaking with the the CPA Insolvency & Reconstruction Discussion Group in Melbourne, at the invitation of Hugh Milne, about my thoughts on the reforms now they have commenced.

So far no one has actually commenced an insolvent administration under the new part 5.3B, but it’s only been a month.

Five companies have lodged declarations under section 458E of the Act in which they indicate an intention to appoint in the future, and gained the advantage of temporary restructuring relief against winding up and insolvent trading claim through to the end of March.

Hardly the flood of insolvencies that the part was introduced as a cheap and quick way to disperse.

In the discussion I pondered:

  • if political rather than reform imperatives were involved in the rush to legislate, perhaps explaining why submissions from the industry bodies, lawyers and accountants were largely ignored
  • is the typical company eligible to use the part as rare as a unicorn: whether the barriers to qualify for using the part (tax lodgement and employee entitlements) will leave it largely unused
  • will directors will have the credit or cash available to trade through the reconstruction period of at least 35 days, given that trade-on creditors of the company will have no recourse to company assets during the reconstruction period
  • whether the $1 million debt threshold is really too low given that contingent and future claims appear to be captured within it, in the final set of regulations.

A copy of the presentation powerpoint slides can be found here:

CPA Seminar – SMB UpdateDownload

and a copy of the accompanying paper here:

CPA seminar notes – 1.2.21Download

COMMENTS ON THE EXPOSURE DRAFT CORPORATIONS AMENDMENT (CORPORATE INSOLVENCY REFORMS) REGULATIONS 2020 AND RULES 2020

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KEY ASPECTS FOR PRACTITIONERS, PPSA ISSUES AND OTHER MATTERS WORTH NOTING

Introduction

  1. The Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 (the Bill) was introduced in Parliament on Thursday 12 November 2020. I have previously commented on the exposure draft of the Bill here and made a submission to Treasury concerning that Bill here.
  2. The text of the Bill as read in Parliament is available at the parliamentary website here, with a mark up against the exposure draft available here.
  3. On 17 November 2020 the Treasury released exposure drafts of the proposed regulations and rules that will be introduced with the Bill once enacted, which are available here.  The content of the regulations and rules and the revised Bill have been summarised extensively elsewhere, see for example an excellent summary by HWL Ebsworth at their website here.
  4. In this article I comment on particular aspects of the regulations that are of interest to insolvency practitioners in operating under the reforms, aspects of the reforms that impact on PPSA issues and other matters of interest.  This article is not intended to be a general review of the regulations or rules, which can be obtained by referring to the sources noted above.

Issue:  employee entitlements and tax lodgment

  1. Despite many submissions to government to exclude these thresholds, they remain.  In short, companies will have to have their employee entitlements paid up and have lodged all outstanding federal tax returns and similar documents before being eligible to take part in a restructuring process.

Issue:  debts incurred in the restructuring are provable in a subsequent winding up

  1. The Bill has amended s553(1A) of the Act so that debts incurred by the company when it is under restructuring or under a restructuring plan are provable.  See the Bill, schedule 1, Part 2 item 48.  The text of the existing sub-section is repealed and replaced to that effect.   
  1. The Bill has amended s553(1A) of the Act so that debts incurred by the company when it is under restructuring or under a restructuring plan are provable.  See the Bill, schedule 1, Part 2 item 48.  The text of the existing sub-section is repealed and replaced to that effect.   

Issue:  Temporary protection of insolvent small businesses from statutory demands to eligible companies, where declaration is made

  1. There will be an extension of the effective moratorium on statutory demands to 31 July 2021 for companies eligible for temporary restructuring relief:  see regulation 5.4.01AAA. 
  2. The government anticipates a shortage of practitioners available to take appointments from 1 January 2021.  This measure is a device to shelter companies from statutory demands whilst waiting to line up an appointee. 
  3. The meaning of the phrase “eligible for temporary restructuring relief” is given by s 458 of the Act.  To qualify, directors must make and publish a written declaration of three matters:
    • Insolvency of the company and the company would meet the eligibility criteria for restructuring;
    • The board has resolved to appoint a restructuring practitioner;
    • There is no other current insolvency appointment (Restructuring Practitioner, VA or liquidator).
  4. Once made a company has made a declaration, the company is eligible for temporary restructuring relief for three months, which can be extended a further month if directors have been unable, despite trying, to appoint a restructuring practitioner.
  5. How are creditors supposed to know whether any particular debtor is eligible for restructuring when they are not insiders of the company?  Some relief will come from the publication of the notice.  One would need to know that the company has less than $1m in liabilities excluding contingent claims.  This will add a degree of uncertainty for people proposing to use a statutory demand process.

Issue:  Restrictions on voidable transactions in simplified liquidation

  1. In regulation 5.5.04, the restrictions on unfair preference recoveries have been set out.  In essence, unfair preference recoveries will be restricted to debts that exceed $30,000 in total or in cumulative series of related transactions, and will be restricted to transactions entered into on the three month period ending on the relation back day rather than 6 months.
  2. Preference recoveries against related entities of the company will be unaffected.

Issue:  Restructuring appointment triggers PPSA Vesting

  1. The Bill as read in parliament now amends s 267 of the Personal Property Securities Act 2009 (Cth) (PPSA) so that the effect of a restructuring appointment is to trigger vesting of unperfected security interests in the company.  See items 115 to 117 of the Bill. This was left out of the exposure draft.

Issue:  Determining the amount of liabilities to be counted in the $1 million cap for restructuring – still messy

  1. Two issues that were open from the exposure draft of the Bill were the types of debts to be counted into the $1 million threshold, whether other indicia might be used (eg turnover opr employee numbers) and whether the amount of the threshold might be changed.
  2. By the regulations, contingent debts are to be excluded from calculation but future debts remain: see r 5.3B.03(1).  The threshold is confirmed to be $1m, to be calculated on the day the restructuring begins.  No other indica are to be used.
  3. The total will accordingly exclude contingent debts where the contingency has yet to crystallise but include future non-contingent debts, for example rent, which whilst not yet due are certain to arise.
  4. Query the position of contingent debts that crystallise on an insolvency appointment or associated act of default.  The wording of the regulation is ambivalent as to whether crystallised debts of that sort are to be included, since the calculation is to be taken on the day the restructuring begins, not upon the commencement of the restructuring.  It would seem to me that crystallised debts are included since by application of section 36 of the Acts Interpretation Act 1901 (Cth), the restructuring period would be taken to include the whole of the day on which it commences. 
  5. It follows that the commencement of the restructuring may well push the company over the $1 million threshold when such cystallised debts are included.  The Law Council of Australia has recommended in a submission on the regulations that the threshold be calculated fromimmediately before the appointment (see item 1 here), which seems to me to be sensible.  It avoids the need for a review of company contracts to detect contingent debts which might not be disclosed in the accounts of the company. 

Issue:  it appears payments to referrers for appointments are allowed

  1. The regulations appear to permit a restructuring practitioner to pay a “broker”, being a person referring an appointment, for the referral – see reg 5.3B.16. 
  2. This has attracted criticism – it will feed perceptions of a lack of independence of the practitioner to say the least.

Issue:  What Transactions are in the ordinary course of business in the restructuring period?

  1. By s.453L of the Act there is a general prohibition on dealings outside the ordinary course of the company’s business, unless the restructuring practitioner has consented or the transaction was entered into under an order of the Court.
  2. The regulations provide a definition of “ordinary course of business” – see 5.3B.04. 
  3. A transaction that is for the purposes of paying a debt or claim arising prior to the commencement of the restructuring, relating to the transfer or sale of the whole or part of the business, or relating to the payment of a dividend are all outside the ordinary course of business.  Payments of company employee entitlements are not considered outside the ordinary course of business. 
  4. It seems the intent of the regulation is to give the practitioner a measure of control and require their supervision during the restructuring period.  The company will not be able to pay any essential debts arising before the appointment without consent:  for example, a payment to a key supplier might be necessary to continue trading. 
  5. Reg 5.3B.05, sets out a process for restructuring practitioners to follow when consenting to transactions outside the ordinary course of business.  Written consent is to be given by the practitioner and a record of the consent to be kept by the practitioner and given to the company within two business days of the consent being given.
  6. Practitioners should be aware of that requirement as it seems to me it will be a not uncommon occurrence.

Issue: when a restructuring ends

  1. How a restructuring is to end was left out of the Bill and is now provided for in the regulations.  Regulation 5.3B.02 deals with when a restructuring is to end.  In summary, a restructuring will end if the company:
    • fails to propose a restructuring plan in the restructuring period;
    • a proposal to make a restructuring plan lapses;
    • the restructuring practitioner terminates the restructuring;
    • the Court orders the restructuring to end;
    • an administrator of the company is appointed;
    • a liquidator or provisional liquidator is appointed;
    • or the company makes a restructuring plan (a successful ending).
  2. There are a couple of interesting points:
    • It appears to me that directors can still appoint a voluntary administrator even though the company is under restructuring;
    • Directors have a power under r5.3B.02(2) to unilaterally end a restructuring on giving notice to the practitioner and ASIC.  It seems odd to me that given that a company that enters into a restructuring is presumed to be insolvent and it would seem to be poor policy to allow the directors of the company to end the restructuring process without completing it and continuing to trade.
  3. If a restructuring is terminated by the restructuring practitioner, regulation 5.3B.02(6) requires the contents of the written notice required from the restructuring practitioner of the decision to terminate (see s.453J(3)(b) of the Act) are set out.  The notice must include the reasons for terminating the restructuring.

Issue: Proposing a restructuring plan and its contents

  1. Section 455B of the Act as amended provided for regulations to be made about the process of proposing a restructuring plan.
  2. Those regulations are included in Division 3 of the proposed regulations.  Practitioners will need to be familiar with these provisions and develop precedents that conform with them for draft plans to be used in practice.
  3. The plan must conform with that approved form and must also include various matters including regulation 5.3B.13.  They include matters such as:
    • how the company property is to be dealt with;
    • what property is to be the subject of the plan;
    • the remuneration of the practitioner;
    • the date on which the plan was executed.
  4. The plan may also:
    • authorise the practitioners to deal with identified property in a specified way (eg by sale);
    • providefor any matters relating to the company’s financial affairs;
    • be conditional upon the occurrence of events within a specified period no longer than 10 business days after the proposal is made and accepted (presumably, provision of finance, third party consents etc).
  5. Plans cannot provide for the transfer of property other than money to a creditor and plans can only have a life of 5 years beginning on the day that the plan is made in respect to payment.  In other words, payments under the plan have to be made within a maximum period of 5 years.
  6. By regulation 5.3B.14 a restructuring proposal statement must be prepared to accompany the plan which will include a schedule of debts and claims that are affected by it, and that statement must be in a prescribed form.
  7. The Act and regulations use the phrase “making a restructuring plan” and distinguish “proposing a plan”.  Making a plan is where a proposed restructuring plan is accepted by creditors and is accordingly binding.  Compare a deed proposal and a DOCA.

Issue:  the “proposal period” and extending it

  1. The default period of the restructuring process is 20 business days.  That period can be extended by another 10 business days if the restructuring practitioner is satisfied that requiring the company to give their plan within the 20 day period would not be reasonable in the circumstances.  Only one such extension can be given, that the Court can give further extensions on application.  See regulation 5.3B.15.
  2. This regulation mimics the practice in relation to voluntary administration of extensions made by the Court which, on the first request, are routinely given.  It seems to me to be a sensible regulation but one could expect the Court to be less accommodating than in VA on the first request to it for more time. 

Issue:  Certification of the restructuring plan by the restructuring practitioner

  1. Regulation 5.3B.16 provides detail of a certificate that restructuring practitioners have to provide in respect of each restructuring plan.  They should be of concern to restructuring practitioners as to the burden of certification, because of their broad scope, remembering that practitioner’s  freedom from liability in performance of their duties requires an absence of negligence.  The certificate must confirm the following matters:
    • the eligibility criteria for restructuring are met by the company;
    • the company is likely to be able to discharge the obligation created by the plan when they become due and payable;
    • the practitioner believes on reasonable grounds that all information required to be set out in the company restructuring proposal has been set out in the statement;
    • if the practitioner believes that is not the case, they must set out or identify the matters in relation to which a belief on reasonable grounds could not be formed; and
    • if a person referred the company to the restructuring practitioner it requires them to set out any details of that relationship and any payments made to the broker in connection with the referral.
  2. These obligations are serious and require a restructuring practitioner to satisfy themselves of the eligibility of the company for restructuring and the likelihood that the company imposing a plan will be able to satisfy the obligations that it is taking on.
  3. A restructuring practitioner commits an offence if they prepare a certificate under this regulation and do not make reasonable inquiries into the company’s business, property, affairs and financial circumstances or take reasonable steps to verify the company’s business, property, affairs and financial circumstances.  It is a 50 penalty unit penalty and an offence of strict liability.
  4. The prospect of civil liability for breach of these provisions (if such a breach is either because of a lack of good faith or because of the presence of negligence) and the fact that failure to make reasonable inquiries and take reasonable steps as noted above is an offence, should make practitioners cognisant of the important role in investigating the affairs of the company and certifying the proposed plan under these provisions.
  5. Further by Regulation 5.3B.17, a restructuring practitioner commits an offence if they fail to notify the company of incompleteness or inaccuracies in information in the plan or the restructuring proposal statement that accompanies it, where those flaws are likely to affect the company’s ability to meet its obligations under the plan.
  6. By regulation 5.3B.18 a restructuring practitioner can cancel a restructuring proposal under certain conditions, which include the restructuring practitioner discovering before the plan is made that the information in the plan is incomplete, affected creditors have not been disclosed, the proposal statement was deficient because it omitted a material particular or there has been a material change in the company’s circumstances not previously foreshadowed which is capable of affecting creditors’ decisions as to whether to accept the plan.
  7. That regulation provides the restructuring practitioner with a safety valve having regard to the onerous obligations that they are subject to.

Issue:  Acceptance of the plan

  1. Two interesting points regarding how a plan is accepted:
    • a plan is accepted if there is a majority in the value of the company’s affected creditors in favour who reply before the end of the acceptance period.  It would seem that if creditors choose not to vote, the plan can be accepted provided the majority of those voting are in favour by value.  Conceivably if one credited voted in favour and no other creditors voted, the plan would be approved.
    • if an affected creditor is entitled to vote because they have purchased another creditor’s claim, then the value of their vote is limited to the value that they paid for the debt.  In other words it’s the purchase price of the debt, not its face value that matters.
  2. The regulations make it an offence to give or agree or offer to give an affected creditor (simply a creditor who is bound by a plan or will be if the plan is made) any valuable consideration with the intention of securing an acceptance or non-acceptance of the plan.  Vote buying is out! 

Issue:  Appointment functions and powers of a restructuring practitioner under a plan

  1. The functions and powers of a restructuring practitioner under a plan, once made, are  provided in subdivision D, regs 5.3B.32 to 40.
  2. The functions include to receive and hold money for the company, pay money to creditors in accordance with the plan, realise property and distribute its proceeds if requested to do so by the directors,  do anything incidental to the performance or exercise of their functions and powers and to do anything else necessary or convenient for the purposes of administering a plan.
  3. By regulation 5.3B.34, there is a prohibition on a practitioner disposing of encumbered property, with exceptions.  The exceptions are if the property is PPSA retention of title property, disposals in the ordinary course of business, disposals with the consent of a secured party or with leave of the Court.
  4. By regulation 5.3B.35 the restructuring practitioner is the company’s agent when carrying out the company’s restructuring plan, and has qualified privilege in that respect and a right of indemnity with priority.  The priority is dealt with in reg 5.3B.39.  The right of indemnity prevails over all of the company’s unsecured debts, debts secured by a PPSA security interest that has vested, and debts secured by circulating security interest, except where a receiver has been appointed.
  5. By regulation 5.3B.40, the restructuring practitioner has a lien to secure the indemnity on the company’s property. 

Issue:  Information to be provided to the restructuring practitioner and reporting obligations

  1. Divisions 4 and 5 of the regulations deal with the company’s obligations to provide information to an incoming restructuring practitioner, declarations required to be made by the directors in relation to the appointment, notice of the restructuring plan and notices of contravention and termination of the plan. 
  2. A declaration by directors is required of the company’s eligibility to be under restructuring and other matters by regulation 5.3B.44.  The declaration must include whether any transactions that have been entered into by the company would be voidable under s.588FE if the company were wound up, other than transactions which would be an unfair preference.  This interesting obligation (one doubts it will be thoroughly observed) seems to require the directors to seek professional advice concerning the company’s transaction history to assess whether any voidable transactions may have occurred.  It seems to me that an unadvised company director would identify such transactions and the director/s will probably seek assistance from the restructuring practitioner before making of this declaration.

Issue:  Powers of the Court

  1. Much of the powers of the Court are left to be dealt with in the regulations and those regulations are contained in Division 6 in regulations 5.3B.50 to 55.
  2. Points of interest:
    1. The Court has a jurisdiction to deal with creditor disputes over claims and debts that are not resolved by agreement.  The jurisdiction only activates where a disagreement has arisen between the affected creditor and the restructuring practitioner; has refused to make a recommendation about it or has recommended that the dispute be referred to Court. 
    2. The Court also has a jurisdiction to vary restructuring plans on application of a company, an affected creditor, the restructuring practitioner or ASIC or on its own initiative. 
    3. The Court has a wide power to make orders to terminate, void or validate a restructuring plan. 

Issue:  Simplified liquidation

  1. The regulations also provide for circumstances in which a simplified liquidation process will end. 
  2. A problematic point is a deeming provision in reg 5.5.07.  If the company or a director of the company has been engaged in fraudulent or dishonest conduct that has had a material adverse effect on the interest of creditors as a whole or class of creditors as a whole, then the simplified liquidation process is taken to have ceased.  It is an interesting provision because the activating event is the formation by the liquidator of a that the dishonest or fraudulent conduct has occurred, where held on reasonable grounds. 

Date:  26 November 2020

Mark McKillop

Castan Chambers

Melbourne Victoria

Common Issues with the PPSA and how to deal with them as a solicitor or barrister

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I recently presented a video podcast with my learned friend and fellow barrister Amanda Carruthers on the topic “PPS Issues in Insolvency”: see below. The format is to highlight the frequent PPSA issues that we see as barristers and how best to tackle them as a practitioner.

You can also download the seminar and watch at https://foleys.com.au/ResourceDetails.aspx?rid=459&cid=5

Enjoy. The seminar is part of a series presented by Foleys List on a wide range of topics relevant to commercial lawyers. See the full range at https://foleys.com.au/cpdresources.aspx

Small Business Insolvency Reforms Seminar Paper and Update on the next draft of the Bill

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Will the Covid Insolvency Wave look like this?

I had the pleasure of speaking to the first Zoom meeting of the CPA Insolvency & Reconstruction Group on Monday night about the Small business Insolvency Reforms, at the invitation of Hugh Milne. A copy of the paper I presented and the overheads from the night are linked below.

CPA seminar notesDownload
CPA Seminar Slides. v2Download

As yet there is no indication yet of the date when the final bill or the regulations will surface. Since the legislation is supposed to commence by 1 January 2021, and the last sitting of parliament is in the two weeks from 30 November, we could assume that we will see some drafts by the end of the month. Here is hoping anyway.

I suspect the bill will end up being delayed and the commencement date pushed back to a date in March. I have no reason to say that other than that the first draft was very undercooked, and that job keeper has been extended again. One wonders whether the moratoriums on statutory demands, bankruptcy notices and insolvent trading will be too.

My submission on the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 (the Bill)

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Treasury invited submissions on the Bill providing only 5 days notice, after the exposure draft and EM had been released.

I am not normally prone to making legislative drafting submissions, but the rush in this case really warranted one given that I had read and considered the merit of the exposure draft. I suspect that the short time frame, plus the lockdown in Melbourne, will have substantially limited the ability of many usual contributors to respond.

Some of the key points of my submission are as follows.

The debt threshold for the application of restructuring and simplified liquidation needs careful thought and ought be lowered.

The final draft of the law must minimise the operative provisions of substance that are left to regulations.

Debts incurred in the trade on period must be given some priority, if no personal liability is to be imposed on the directors.

Applications to Court during the restructuring and the simplified liquidation must be limited, probably most effectively by requiring leave and subjecting the discretion to grant it to a purposive test.

Transition to liquidation needs to be clearer, and there should be no transition to VA.

The reporting obligations and the investigative powers of the restructuring practitioner need to be reasonably strong, if truncated for purpose.

The employee entitlements and tax filing threshold obligations should be scrapped.

The legislation should be delayed by 2 months to allow more work to be done on it.

A copy of my submission is available at this link:

Submission to Treasury on the Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 – Mark McKillopDownload