We are excited to share the inaugural edition of R+I In Brief, where we explore the past year of developments in the Australian restructuring and insolvency industry and provide our thoughts on the year ahead.

The 2023 edition of R+I In Brief includes a collection of articles and case notes we have prepared as well as some further commentary on issues we consider pertinent to the restructuring and insolvency industry.

It is broken up into three parts:

1) Setting the scene;

2) Industry Insights ; and

3) Judicial Highlights.

Setting the scene

Part 1 explores recent restructuring and insolvency developments in Australia in FY22/23. Click through if you would like to know more about:

• Australia’s near term economic outlook and the likely impact on insolvency appointments and distressed asset sales;
• the Federal Government’s current inquiry into the effectiveness of Australia’s corporate insolvency laws; and
• recent significant transactions in the Australian restructuring and insolvency market, including Basslink and Camp Australia.

Industry insights

Part 2 conducts a deep dive into key industry and sector insights relating to the restructuring space over the past year. We explore a number of hot topics, including:

• challenges gripping the Australian construction industry in an era of pre-COVID fixed-term contracts and soaring construction and funding costs;
• the latest movements of Australia’s largest creditor, the Australian Taxation Office;
• the prevalence of ‘whitelists’ in debt documentation and the need to rethink their use; and
• the emergence of cryptocurrency in the insolvency arena.

Judicial highlights

To round out the 2023 edition of R+I In Brief, part 3 delves into significant judicial developments in Australia dealing with insolvency law, as well as a noteworthy decision of the UK Supreme Court which has potential significance for Australia’s insolvency framework. Click through if you would like to understand:

• how the Court can cure defects in the appointment of an administrator, if there are governance concerns including that a board is inquorate;
• the powers and duties of the last director left standing, in circumstances where all the other directors have resigned due to the company’s financial distress;
• how the Court can validate an administrator’s appointment, importantly securing their remuneration and disbursements;
• whether creditors are entitled to a right of set off against a liquidator’s claim to recover an unfair preference, and whether liquidators can apply the ‘peak indebtedness rule’ when assessing unfair preference claims;
• the Court’s attitude to late applications made by insolvency practitioners for routine matters, including for extensions to the period for convening the second meeting of creditors of a company in voluntary administration; and
• a recent decision of the UK Supreme Court establishing the ‘creditors’ interest duty’ (or the West Mercia rule), requiring directors to consider the interests of the company's creditors where a company is insolvent or is nearing insolvency, which is likely to influence Australian courts going forward.

Each part of our publication includes various resources which, we trust, will equip you with valuable insights to prepare you for what 2024 may have in store in the restructuring and insolvency space.  For those who favour brevity, we have distilled the key messages at the beginning of each article.

We hope you will find the 2023 edition of R+I In Brief to be an interesting read and a useful resource for FY23/24.