Reconstruction & Insolvency

Reconstruction & Insolvency


Members of our Reconstruction and Insolvency team have acted in many of Australia’s highest profile reconstructions, workouts, security enforcements and insolvencies.

Impending financial collapses can often be turned around but only if parties develop a sound recovery strategy and take quick action which is well implemented. Our approach is not to act like corporate undertakers but more like corporate doctors. We bring together the skills, knowledge and judgement of experienced market leading lawyers to provide practical but highly developed and tailored solutions for our clients.

We act for listed and unlisted companies, insolvency practitioners, banks, financiers, creditors, borrowers, investors and officers. Our team has the experience, systems, knowledge, supervision and training to achieve the optimal outcome for our clients. As a fully independent law firm with an extensive network of local, national and international relationships, we assist our clients in utilising the best advisers for their needs.

Our depth of experience has enabled us to develop sophisticated responses and techniques to deal with an array of complex situations. The challenge is that insolvency continues to deliver new scenarios. Our team’s knowledge and understanding enables us to apply innovative solutions to all types of new problems. We also think creatively to find solutions. Our practitioners for example have pioneered the use of schemes of arrangement, deeds of company arrangement and creditors’ trusts in Australia to deliver results for clients in difficult and diverse situations.

We work collaboratively with the wide range of other specialty sectors of the firm. We operate in all sectors of the insolvency, enforcement, reconstruction and related alternate dispute resolution and litigation areas in an extensive range of industries.

Our core capabilities in Reconstruction & Insolvency include:

  • Corporate reconstructions

  • Company administrations

  • Deeds of company arrangement

  • Receiverships both Court appointed and private

  • Creditors’ trusts

  • Statutory demands

  • Liquidations and Provisional Liquidations

  • Winding up applications

  • Oppressive conduct applications

  • Security Restructuring

  • Solvency and directors’ duties advice

  • Insolvent transactions

  • PPSA advice

  • Related Litigation

  • Acting for the Saracen Property Group with litigation funder, IMF in the dispute over the appointment of receivers and managers to the AUD 500 million Raine Square development in Perth.

  • Acting for the administrators then liquidators of the Palandri Group in complex AUD 220 million multiple agricultural managed investment schemes and investment finance, wine productions and sales businesses.

Rob McKenzie

Lead Partner

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Victoria Butler

Partner

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Neil Gentilli

Partner

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Eva Lin

Partner

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Sarah Calautti

Senior Associate

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  • 12 April 2016

    Underneath the radar: balancing public information with personal security

    In various industries, decision-makers significantly affect the rights and interests of others.  Despite the fact that they may have regularly encountered aggressive and disgruntled people in the course of their roles, they frequently downplay the personal security risks that arise, reassuring themselves that they are “only doing their job” and that all affected people “will understand”. Further, people often assume that there is nothing they can do to overcome a requirement for their address to be publicly available information e.g. ASIC keeps a register of director addresses.  

    This alert examines the options available for suppressing personal information from publication, highlights the importance of applying for suppression as soon as a security risk develops, and considers the inherent security risks in using social media. 

    Author: Eva Lin

    LINK 42 Bytes

  • 27 January 2016

    Applying partnership assets to meet the costs of liquidators appointed to the former partners

    It is well-established that a liquidator is entitled to his or her expenses properly incurred in preserving, realising or getting in property of the company to which they are appointed.

    Authors: Victoria Butler, Eva Lin

    LINK 43 Bytes

  • 17 January 2016

    Insolvency update: recovery of unreasonable director-related benefits

    When a company becomes insolvent, sections 588FA and 588FB of the Corporations Act 2001 (Cth) (Corporations Act) empower liquidators to investigate voidable transactions, including unfair preference and uncommercial transactions, as well as unreasonable director-related transactions.
     
    This update focusses on some recent judicial developments in the law surrounding recovery of unreasonable director-related transactions.  These developments may broaden the scope of potential recoveries open to insolvency practitioners under section 588FDA of the Corporations Act.

    Author: Victoria Butler

    LINK 42 Bytes

  • 28 July 2015

    Ability of Insolvency Practitioners to Utilise the Adjudication Process

    There has been some recent discussion around the use by Insolvency Practitioners of the security of payment legislation. The benefits of engaging this process are obvious – there is an opportunity to secure payment for the insolvent company in a quick and cost efficient manner while also avoiding the financial burden of a security for costs order which the insolvent company (and hence Insolvency Practitioner) is likely to face in court proceedings.

    This article considers these issues from the perspective of the Construction Contracts Act 2004 (WA) (the Act) only. The position here is significantly different to the east coast model (as established by Brodyn v Dasein [2004] NSWSC 1230) which has been the subject of recent comment (Robert Fenwick Elliot, “Support for the Bust?”, wordpress).

    Author: Thomas Jacobs

    LINK 41 Bytes

  • 18 March 2015

    High Court confirms position regarding “Shelf Orders”

    In a recent decision, the High Court unanimously dismissed an appeal from the Court of Appeal of New South Wales concerning the circumstances in which a “shelf order” may be made.  A “shelf order”  allows a liquidator to seek an extension of time in which to apply to the court for an order that a transaction be declared voidable, in circumstances where the relevant transaction cannot be identified.  In Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10, the High Court confirmed that a court can make such an order under s 588FF(3) of the Corporations Act 2001 (Cth) (Act)  notwithstanding the fact that the potentially voidable transactions cannot be identified.
     
    The High Court’s decision has clarified a number of significant issues relating to extensions of time for the commencement of voidable transaction proceedings under the Act, including the power of the court to make “shelf orders” and the policy considerations which a court will take into account when determining a section 588FF(3) application.

    Author: Victoria Butler

    LINK 41 Bytes

  • 9 February 2015

    The importance of virtue – no priority for wrongful dismissal claims.

    The importance of virtue – no priority for wrongful dismissal claims.

    Does a claim for damages for wrongful dismissal constitute a “retrenchment payment” under s.556(1)(h) of the Corporations Act 2001 (Cth)?  In its December 2014 decision in Schmitt v Carter, the Federal Court held that such a claim is not a retrenchment payment and, accordingly, the creditor did not have a priority claim.

    Authors: Victoria Butler, Sarah Calautti

    LINK 40 Bytes

  • 5 August 2014

    Financial System Inquiry - External Administration Reforms

    The Hon Joe Hockey announced the final terms of reference for a new financial system inquiry on 20 December 2013.  The purpose is to examine how the financial system could be best positioned to meet Australia's evolving needs and support Australia's economic growth.

    An interim report was released on 15 July 2014.  Section 3 discusses potential changes to the current external administration regime in Australia. 

    Submissions were received that Australia should look to adopt a Chapter 11 style regime that is similar to the Chapter 11 provisions applying in the United States. A key difference between Chapter 11 and voluntary administration is that under Chapter 11 operational control remains with management, subject to Court supervision, rather than insolvency practitioners taking over the running of the business and company. 

    The Committee has come to the view that Chapter 11 has rarely enabled businesses to continue as going concerns in the long term.  It considers that adopting such a regime would be costly and could leave control in the hands of those who are often the cause of a company’s financial distress.  

    The Committee seeks further comment on retaining the current external administration regime and instead, rather than widespread structural reform, implementing the proposals suggested by the Commonwealth Government in 2012 to reduce the complexity and the cost of external administration.

    Author: Rob McKenzie

    LINK 63 Bytes

  • 10 June 2014

    Indirect director benefits- are they now caught by 588FDA?

    The scope of section 588FDA (unreasonable director-related transactions) of the Corporations Act has potentially been widened by recent comments of the Victorian Court of Appeal. The Court of Appeal in Vasudevan v Becon questioned whether a transaction is deemed to have been made 'for the benefit of' a director even if the benefit is only an indirect benefit.

    Authors: Victoria Butler, Sarah Calautti

    Download PDF 40 Bytes

  • 5 June 2014

    DOCA defeats ongoing guarantee

    The Supreme Court of Western Australia has recently held that a creditor’s claim against a guarantor was extinguished some years earlier, under the guarantor’s deed of company arrangement (DOCA).

    Author: Victoria Butler

    LINK 40 Bytes

  • 5 December 2013

    Willmott Growers Group Inc v Willmott Forests Ltd (receivers and managers appointed) (in liquidation) [2013] HCA 51

    The High Court of Australia yesterday delivered its judgment in Willmott Growers Group Inc v Willmott Forests Ltd (receivers and managers appointed) (in liquidation) [2013] HCA 51.

    The court provided a final answer to the question of whether a landlord’s disclaimer of a lease by the liquidator of a landlord has the effect of extinguishing the leasehold estate of the tenant. The High Court decided such a disclaimer does have that effect.

    Author: Rob McKenzie

    Download PDF 486 Bytes

  • 17 September 2013

    The Maiden Civil Case and Other Related Issues

    The first significant Australian judgment relating to determining prorities between competing creditors under the Personal Property Securities Act 2009 (Cth) (PPSA) highlights some important issues to consider regarding the PPSA, especially with the transitional period nearing its end.

    Author: Hilary Hunt

    Download PDF 479 Bytes

  • 25 May 2012

    Jackson McDonald 5th time Perth Law Firm of the Year

    Jackson McDonald consolidated its position as the leading West Australian law firm when named Perth Law Firm of the Year at the 2012 ALB Australasian Law Awards in Sydney on 24 May 2012.

    It is the fifth year out of six that Jackson McDonald has won this prestigious award.

    Authors:

    Download PDF 304 Bytes

  • 20 April 2012

    GST tie breaker - are you the representative of an incapacitated entity or a creditor?

    We might be forgiven for suggesting that Australia’s various tax laws are not the easiest documents to understand and interpret. This is particularly the case where there are apparent overlapping and conflicting provisions, such as the GST provisions relating to supplies by a representative of an incapacitated entity where the representative is also a creditor of that entity.

    Authors: Victoria Butler, Sarah Calautti, Stephen Kemp

    Download PDF 378 Bytes

  • 2 February 2012

    Assignment by a liquidator of statutory causes of action against a director - Can't, in the matter of Novaline Pty Ltd (InLiq)

    The recent Federal Court of Australia decision in Novaline considered the assignment of statutory causes of action. In particular, whether a liquidator could cause the company in liquidation to enter into a deed of assignment of causes of action the company had against a director for alleged breach of ss 180 – 184 of the Corporations Act 2001 (Cth) (the Act).

    Author: Rob McKenzie

    Download PDF 250 Bytes

  • 10 January 2011

    Doing Business in Asia Pacific

    Jackson McDonald is a proud member of Globalaw and has assisted in the development of this guide.

    Authors:

    Download PDF 4 Bytes