Insolvency set-off does not protect creditors against unfair preference claims

In its recent decision in Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd v Metal Manufacturers Pty Limited [2021] FCAFC 228, the Full Court of the Federal Court of Australia (the Court) held that statutory set-off, under section 553C(1) of the Corporations Act 2001 (Cth) (the Act), is not available to a creditor in respect of a liquidator’s claim against that creditor for the recovery of an unfair preference under s 588FA of the Act.

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Herbert Smith Freehills and Nikki Smythe recognised in global TMA Turnaround/Transaction of the Year Awards

We are delighted that Herbert Smith Freehills and partner Nikki Smythe have been recognised by Turnaround Management Association (TMA) in the global 2021 Turnaround/Transaction of the Year Awards for her work on the acquisition of Virgin Australia out of voluntary administration.

Herbert Smith Freehills joins Bain Capital, Clayton Utz, Deloitte, Houlihan Lokey, and KordaMentha, in winning this year’s International Company Turnaround/Transaction of the Year award.

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UK schemes and restructuring plans for businesses in Asia Pacific

An effective restructuring process will need to apply in all relevant jurisdictions where creditors may seek to enforce their debts against the company.

There are often choices for the best implementation mechanism for a cross-border restructuring, which will need to take into account the global footprint and capital structure of each business. Frequently a bespoke solution involving procedures under multiple jurisdictions may be required.

Flexible English law restructuring processes, principally Part 26 schemes of arrangement and recently introduced Part 26A restructuring plans (RPs), continue to provide reliable and effective tools to assist restructuring and recapitalisation of businesses in the Asia Pacific region.

English processes are particularly important where a company has English law governed debt obligations that may not be effectively compromised under local procedures.

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TMA submissions on Australian creditors’ scheme of arrangement consultation

Herbert Smith Freehills’ restructuring, turnaround and insolvency team has supported the Turnaround Management Association of Australia (the TMA) in considering and preparing the TMA’s submissions in response to the Australian Government’s consultation paper Helping Companies Restructure By Improving Schemes of Arrangement (the Consultation Paper).

On 2 August 2021, the Treasury released a consultation paper seeking feedback on changes to improve creditors’ schemes of arrangement in Australia. The submissions process has now closed.

The TMA submissions dated 17 September 2021 (the TMA Submissions) provided an considered and in-depth response to the Consultation Paper, reviewing the current use of creditors’ schemes of arrangement in Australia, considering the lessons from similar international reforms and recommending a number of reforms that should (and should not) be undertaken in Australia.

The TMA Submissions are available here.

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Repossession of aircraft equipment on insolvency: VB Leaseco Pty Ltd v Wells Fargo Trust Company NA

In November 2021, the High Court of Australia will consider the application of the Convention on International Interests in Mobile Equipment done at Cape Town on 16 November 2001 (the Convention) in Australia in light of facts arising out of the administration of the Virgin Australia group.  The hearing will consider the interaction of the Convention in the context of Australia’s insolvency regime, and, more particularly, in what will be of significant interest to the aviation community, the requirements of the Convention to ‘give possession’ of an aircraft object to a creditor.

In this note, we take a closer look at the background to the hearing, the arguments being advanced, and the impact on the aviation sector if this appeal is successful.

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Webinar: Cross-border restructurings: how UK schemes may benefit businesses in Asia Pacific

Jurisdictions across the globe have sought to expand their restructuring toolkits – spurred on by Governments seeking to support business during the COVID-19 pandemic. This has had a significant impact on the options available when restructuring business in the Asia Pacific region.

Please join us on Thursday 30 September for a webinar presented by senior members of our global restructuring team where they examine key principles and issues to consider when examining financial restructuring options for businesses incorporated in Hong Kong, Singapore, Australia, Indonesia or elsewhere in the Asia Pacific region. More details below.

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How are creditors’ schemes of arrangement actually used in Australia?

In light of the Australian Government’s recent consultation paper on improving creditors’ schemes of arrangement, we have assessed how creditors’ schemes of arrangement have actually been used in the Australian market since the global financial crisis in 2008.

We set out the summary of this assessment, and some key observations below. We think this data will help inform the debate about what if any reforms would be appropriate to creditors’ schemes of arrangement in Australia.

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The peak indebtedness rule rejected: new uncertainty for unfair preference claims against trade suppliers

Until the recent decisions of the Full Court of the Federal Court of Australia in Badenoch Integrated Logging Pty Ltd v Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) [2021] FCAFC 64 (Badenoch) and Badenoch Integrated Logging Pty Ltd v Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) (No 2) [2021] FCAFC 111 (Badenoch No 2), the use of the “peak indebtedness rule” had been applied in unfair preference recovery actions to determine the quantum recoverable for the benefit of an insolvent estate. Continue reading

Treasury consults on Australian creditors’ schemes of arrangement reforms

The Treasury has released a consultation paper on changes to improve creditors’ schemes of arrangement in Australia (the Consultation Paper).[1] The main proposal in the Consultation Paper is the consideration of a broad automatic moratorium, available to companies proposing a creditors’ scheme of arrangement.

In addition, the Consultation Paper briefly touches on a number of other topics for discussion, including scheme approval thresholds, cross-class cram downs, debtor-in-possession funding, cross border recognition issues, creditor protection and additional considerations for the improvement of the scheme process more generally.

These changes, if adopted, would have a major impact on Australia’s restructuring and insolvency environment.

Written submissions on the issues raised in the Consultation Paper (to be made to The Treasury) are due by 10 September 2021.

Background to the Consultation Paper

The Consultation Paper was signposted earlier in the year, by way of a media release by the Treasurer on 3 May 2021, promising a series of further insolvency reforms intended to complement the restructuring plan and simplified liquidation procedure  introduced for small businesses last year.

In that media release, the Treasurer indicated that the Government would “consult on improving schemes of arrangement processes to better support businesses, including by introducing a moratorium on creditor enforcement while schemes are being negotiated.”

The proposals in the Consultation Paper appear to draw heavily from recommendations made by the Productivity Commission in its 2015 report.[2]

Automatic moratoriums for creditors’ schemes of arrangement

The main proposal addressed in the Consultation Paper is the consideration of an automatic moratorium to allow “a company and its creditors the breathing space to create a binding agreement to ensure that restructure of economically viable companies is not disrupted by a minority of creditors.”

The Treasury appears to envisage that the moratorium would be similar in scope to that available in a voluntary administration. On this basis it would therefore presumably stay both secured and unsecured creditor enforcement against the company (potentially subject to an exception for a creditor with security over the whole or substantially the whole of the assets of the company). The court would have the power to lift all or part of the moratorium in circumstances where its application would lead to unjust outcomes.

The scheme moratorium and scheme process more generally would continue to involve the directors retaining control of the company – a ‘debtor-in-possession’ process (as opposed to a voluntary administration where control passes to an external administration).

The Consultation Paper notes that the earlier an automatic moratorium is provided, the more effective it will be in providing ‘breathing space’ to the financially distressed company. However it also acknowledged that this needs to be balanced with any impact on creditor rights, the need for creditors to be appropriately informed, and the need for the moratorium to be to be targeted towards genuinely distressed companies seeking to make a scheme. It further provides that consideration needs to be given to the appropriate duration of any moratorium, particularly given the length of a scheme process (typically up to six months to implement).

Other issues

In addition to the automatic moratorium, the Consultation Paper also seeks feedback on a number of other possible changes to creditors’ schemes of arrangement, including:

  • cross-class cram downs: whether to introduce of a ‘cross-class cram down’ mechanism, enabling a compromise or arrangement proposed via a creditors’ scheme of arrangement to be approved by the company’s creditors notwithstanding the opposition of one or more classes of the company’s creditors;
  • debtor-in-possession financing: whether to introduce specific provisions for debtor-in-possession or rescue financing for distressed companies, which may involve granting priority treatment in a liquidation for such financing; or
  • voting thresholds: whether to change the current voting thresholds to approve a scheme of arrangement.

The Consultation Paper also seeks more general feedback regarding the operation of creditors’ schemes of arrangement in Australia, including submissions on other issues that should be considered to improve creditors’ scheme processes, and whether there are potential impacts of the proposed reforms that need to be accounted for (such as cross border recognition issues, impact on particular parties or impact on programmes such as the Fair Entitlements Guarantee programme).[3]

Comment

The Consultation Paper does not contain an explanation as to what might be involved in introducing an automatic moratorium of this kind, or provide much discussion on the rationale for the proposed changes.

It does however reference the Productivity Commissions’ 2015 report, where the following benefits of an automatic moratorium were noted:[4]

  • the lack of an automatic moratorium creates a risk that individual creditors can undermine the attempts to restructure a company via a scheme of arrangement;
  • an automatic moratorium removes the need for costly, and potentially damaging concurrent appointments of administrators or liquidators while pursuing a scheme of arrangement in order to obtain a moratorium as occurred in the case of HIH Insurance; and
  • an automatic moratorium allows time for reconstruction arrangements to be formulated.

However, it is notable that:

  • there is an existing power under section 411(16) of the Corporations Act 2001 (Cth) for the court to stay actions by creditors, which in practice is rarely used; and
  • the United Kingdom, which is the leading jurisdiction for corporate restructuring by way of creditors’ schemes of arrangement, did not see any need to introduce a scheme moratorium as part of its recent reforms (which included the introduction of the ‘restructuring plan’ – an enhanced form of creditors’ scheme of arrangement) under the Corporate Insolvency and Governance Act 2020 (UK) (CIGA).[5]

On its face, the proposal appears to contemplate something akin to the moratorium regime introduced in Singapore’s much publicised restructuring reforms initially introduced in the Companies Amendment Act 2017 (Singapore). These reforms have effectively created a ‘light touch’ debtor-in-possession regime which has fundamentally altered the Singapore restructuring landscape, and created a much more ‘debtor friendly’ environment. Careful thought is required as to whether this model is right for Australia, including an analysis of what has and hasn’t worked with the Singapore regime.

Debtor-in-possession restructuring regimes are becoming more popular around the world, given the potential to achieve a restructuring with less disruption and value destruction than a process involving an external administrator. A key issue in each such case is how to ensure an appropriate level of creditor protection and transparency. This will no doubt be an important consideration here too.

Whilst only briefly mentioned in the Consultation Paper, the cross-class cram down concept has recently been introduced in the United Kingdom through CIGA as part of the new restructuring plan procedure. The restructuring plan has had significant use since its introduction by companies impacted by the COVID-19 crisis, which are now more easily able to ‘cram down’ out of the money creditor classes. Such a mechanism, if properly implemented, could be a valuable addition to Australia’s legislative regime.

Priority treatment for rescue financing is another concept introduced recently in Singapore, which has drawn from the debtor-in-possession (DIP) financing concepts contained in Chapter 11 of the United States Bankruptcy Code. While such mechanics have the potential to unlock financing that can facilitate corporate rescue, they can also imperil the position of existing creditors. Establishing a workable regime that balances these competing interests is not straightforward.

Some initial questions on scheme moratoriums

The brevity of the Consultation Paper masks what is a complex set of issues. We set out below a number of initial questions on the proposed changes to creditors’ schemes of arrangement to assist parties to consider and assess the proposed reforms:

  • Rationale: What is the problem that the automatic stay on creditor action is seeking to solve? How widespread is this problem in practice? Is an automatic moratorium the best way to solve this problem?
  • Standalone vs scheme linked moratorium: If there is a concern that creditors’ schemes of arrangement (a valuable restructuring device) are only used sparingly in Australia, why is the moratorium tied to the scheme of arrangement process? Should an alternative approach of having a stand alone moratorium (such as the Part A1 Moratorium process adopted in the UK) be considered?
  • Incentives: What behaviour (positive or negative) does the proposed regime incentivise? Does a “no questions asked” moratorium encourage companies to delay grappling with their issues (potentially leading to worse outcomes)? Could (and should) the moratorium be used as negotiating leverage to extract concessions from creditors?
  • Lending: What impact will the moratorium have on Australian credit markets?
  • Conditions of commencement: What conditions would need to be satisfied for a company to commence a moratorium? How developed would a scheme of arrangement need to be? Would the company need to demonstrate sufficient creditor support to pass the scheme (or insufficient creditor dissent to block the scheme)? Would the scheme need to be viable, and result in a better outcome for creditors than a voluntary administration or liquidation?
  • Qualifying companies: Would the moratorium be available to all companies, or would certain types be excluded (eg banks or insurers)? Would it apply to just Australian incorporated or registered companies, or could it apply to foreign companies as well (eg with Australian COMI)?
  • Excluded transactions: Would any types of security or transaction be excluded from the scope of the moratorium (eg financial market type transactions)?
  • Related group companies: Would the moratorium just apply to the scheme company, or could it apply to related bodies corporate as well?
  • Automatic vs court order: Would the moratorium be entirely automatic, or would the automatic moratorium only apply for a limited period during which the company would need to seek a court order for a moratorium of longer duration (eg like the Singapore approach)?
  • Disclosure and transparency: What information would the company need to disclose about its financial position or activities? How would it be disclosed? Would the company need to disclose it was subject to a moratorium before incurring further credit?
  • Oversight: Would there be any oversight of the company during the moratorium period (eg like the UK monitor concept)? What role would the court have, and who would have standing to apply to the court for orders?
  • Restrictions on transactions: Would there be any restrictions on the company making payments, incurring debt, disposing assets, granting security or entering into transactions outside the ordinary course of business during the moratorium period? If so, who (if anyone) would give permission to the company to undertake such transactions? Would the court have a role in this?
  • Priority of debt incurred: Would debt incurred by the company during the moratorium period have any priority treatment in a liquidation?
  • Voidable transactions: Would payments to creditors and other transactions during the moratorium period be subject to the voidable transactions regime? When would the “relation back day” be if a moratorium was to precede a liquidation?
  • Exit from moratorium: What would be the exit from the moratorium? If a scheme is approved then presumably the moratorium would cease, but what would happen if a scheme wasn’t approved – would the company go into administration or liquidation, and who would decide? Could there be other exits such as a DOCA if this was a more appropriate tool for restructuring the company than a scheme? Would it be possible to undertake a sale of the company or its business within the moratorium, and again what approvals would be needed?

Concluding remarks

Supporting businesses and directors whilst creditors’ schemes of arrangement are being negotiated is, of course, a worthwhile goal (noting, in particular, that complex schemes can take many months to formulate and negotiate). However, it is important that any such support is not abused and that creditors and other stakeholders are also protected through that process.  Accordingly any change to the existing regime needs careful evaluation and a balancing of competing issues.

Endnotes

The views in this paper are the personal views of the authors.

[1] The Australian Government Treasury, Helping Companies Restructure by Improving Schemes of Arrangement (Consultation Paper, 2 August 2021).

[2] Productivity Commission, Business set-up, transfer and closure, (Inquiry Report, 7 December 2015).

[3] Consultation Paper (n 1)  7.

[4] Productivity Commission, Business set-up, transfer and closure, (Inquiry Report, 7 December 2015) 357, 398, 399. The Commission did not introduce any evidence indicating a causal relationship between these theories and the lack of widespread use of schemes of arrangement in Australia.

[5] The UK did introduce a standalone moratorium under CIGA, under the supervision of a ‘monitor’. In practice however the UK’s moratorium process has not to date been used by companies seeking to restructure by way of scheme of arrangement or restructuring plan.

Key contacts

Paul Apáthy
Paul Apáthy
Partner, Sydney
+61 2 9225 5097
Andrew Rich
Andrew Rich
Partner, Sydney
+61 2 9225 5707
William Chew
William Chew
Senior Associate, Sydney
+61 2 9225 5827
Natasha McHattan
Natasha McHattan
Special Counsel
+61 2 9322 4721
Angus Dick
Angus Dick
Solicitor, Sydney
+61 2 9322 4226