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1、 Australias new insolvency regimes for small business Commenced 1 January 2021 2|Baker McKenzie Table of Contents Part A-Restructuring.3 1.Eligibility Criteria.5 2.How does Restructuring commence?.5 3.Initial notices to creditors and the Australian Securities&Investments Commission(ASIC).6 4.Develop

2、ment of the Restructuring Plan.7 5.Prerequisites for putting the Restructuring Plan to creditors.8 6.Putting the Restructuring Plan to creditors.9 7.Voting on Restructuring Plan and disputing Companys assessment of admissible debts and claims.9 8.Making the Restructuring Plan.11 9.Ending the Restruc

3、turing and consequences.11 10.Effect on key stakeholders.13 11.RP-Remuneration and liability.16 Simplified Liquidation Process.18 1.Eligibility.19 2.What will be different from a normal CVL?.19 3.Safeguards to prevent misuse.20 Resources.22 In brief On 1 January 2021,the Federal Governments post-COV

4、ID small business restructuring reform package1 came into effect.This package introduced into the Corporations Act 2001(Cth)(Corporations Act):two new insolvency regimes for companies with liabilities of less than$1 million,namely:o a debtor in possession restructuring and restructuring plan process

5、(Restructuring);and o a simplified liquidation process(Simplified Liquidation).1 Corporations Amendment(Corporate insolvency Reforms)Act 2020(Cth);Corporations Amendment(Corporate Insolvency Reforms)Regulations 2020(Cth)and Insolvency Practice Rules(Corporations)Amendment(Corporate Insolvency Reform

6、s)Rules 2020(Cth)Part A-Restructuring 4|Baker McKenzie Part A-Restructuring The Restructuring process provides a framework for eligible small businesses to work together with a Restructuring Practitioner(RP)to develop and propose to creditors a debt restructuring plan which if accepted,will bind the

7、 Company,its officers,members and certain creditors.It is designed to be a debtor-in-possession model,and as such,day-to-day management of the Company remains with the board throughout the process.There are 2 key phases of the Restructuring,namely:the Restructuring phase,which commences on the appoi

8、ntment of the RP and ends in certain circumstances outlined in Section 9 Ending the Restructuring(below),including when a Restructuring Plan is made;2 and the Restructuring Plan phase,which commences when the Restructuring Plan is made and ends when that Restructuring Plan is terminated for any of t

9、he reasons outlined in Section 9 Ending the Restructuring(below),including when the Restructuring Plan is fully implemented.3 2 Corporations Act,s 453A and Corporations Regulations,reg 5.B.02 3 Corporations Regulations,regs 5.3B.26(2)and 5.3B.31 Company appoints Restructuring Practitioner(RP)Company

10、 develops Plan with RPs support Company:1.executes Plan;and 2.finalises Restructuring Proposal Statement,which includes a Schedule of Claims RP:1.makes declaration(RP Declaration)2.Proposes Plan by giving the following to creditors&asking them to vote on the Plan:a.Plan b.Restructuring Proposal Stat

11、ement c.Standard Terms d.RP Declaration Creditors can:1.vote on Plan;and 2.dispute Companys assessment of their claim and status as Excluded Creditor(as relevant)If Plan is Accepted,Plan is made and Restructuring Phase ends Plan terminates once fully implemented 2 3 4 5 6 7 1 Proposal Period(typical

12、ly 20 business days,unless extended by RP(up to 10 business days)or via Court order)Acceptance Period(typically 15 business days,unless RP gives a Significant Variation Notice or Court orders a longer period)Restructuring Phase Plan Phase RP gives initial notices of appointment to ASIC and creditors

13、 (within 1 business day)Directors give Directors Declaration to RP(within 5 business days)Deadline for Company:a.paying employee entitlements b.filing tax returns RP gives Notice that Plan has been made to ASIC and creditors (within 5 business days)RP lodges with ASIC copies of Plan,Restructuring Pr

14、oposal Statement and RP Declaration(within 2 Business Days)1.Eligibility Criteria A Company can use the Restructuring process if it satisfies the following(the Eligibility Criteria):its total liabilities4 do not exceed$1 million;5 and no person who is(or has been within the preceding 12 months)a dir

15、ector of the Company,has been a director of another company that has undertaken a Restructuring or Simplified Liquidation within the preceding 7 years,unless that other company:i.was a related body corporate of the Company;and ii.its Restructuring or Simplified Liquidation commenced not more than 20

16、 days before the day on which the Restructuring of the Company began;6 and the Company itself has not undertaken a Restructuring or Simplified Liquidation process within the last 7 years.7 In addition,the Company must not already be under Restructuring,be subject to a Restructuring Plan that has not

17、 yet terminated,be under administration,subject to a deed of company arrangement,or in liquidation or provisional liquidation.Before appointing an RP,directors should also consider whether at the time the Restructuring Plan is to be put to creditors,the Company will be able to comply with the Pre-Re

18、quisites specified below(see Section 5.Prerequisites for putting the Restructuring Plan to creditors).8 2.How does Restructuring commence?The Restructuring of a Company which satisfies the Eligibility Criteria is commenced by the Company appointing the RP in writing.9 This instrument of appointment

19、can only be signed if:the RP has first consented to act in writing,and not withdrawn that consent;10 and the Companys board of directors has resolved to the effect that:i.in their opinion the Company is insolvent or likely to become insolvent at some future time;and ii.the RP should be appointed to

20、the Company.11 Only registered liquidators can consent to act as a RP.12 In addition,if they are connected13 with the Company,a registered liquidator cannot seek or accept the appointment or act as the RP for that Company,without the leave of the Court.14 4 Liability means any liability to pay a deb

21、t or claim that would be admissible to proof under s553(1)of the Corporations Act were the company being wound up on the day the Restructuring commenced,other than employee entitlements and debts incurred during a DOCA(Corporations Regulations,reg 5.3B.03(5)and the definition of admissible debt or c

22、laim in reg 5.3B.01).An early case suggests the quantum of contingent claims within this cap are assessed on a just estimate basis:Re Dessco Pty Ltd 2021 VSC 94(26 February 2021)5 Corporations Act,s 453B(1)(a)and 453C(1)(a)and Corporations Regulations,reg 5.3B.03(1)6 Corporations Act,s 453B(1)(a)and

23、 453C(1)(b)and(c)and Corporations Regulations,reg 5.3B.03(2)-(4)7 Corporations Act,s 453C(1)(c)8 Corporations Act,s 453B(2)9 Corporations Act,s 453A(a)and 453B(1)10 Corporations Act,s 456A 11 Corporations Act,s 453B(1)(b).It would also be prudent for the resolution to confirm that the Company meets

24、the Eligibility Criteria and specify the RPs remuneration.12 Corporations Act,s 456B 13 A person will be connected to a company in the circumstances set out in s 456C(1)of the Corporations Act,which are the same as those in s 448C of the Corporations Act applicable in voluntary administration 14 Cor

25、porations Act,s 456C(1).Failure to comply with this requirement is a strict liability offence:Corporations Act,s 456C(2)6|Baker McKenzie To ensure there is a sufficient number of registered liquidators who can perform this role,a new class of registered liquidators who practice solely as RPs has bee

26、n created.To be registered in this new class,an applicant must be a recognised accountant,have demonstrated the capacity to satisfactorily perform the functions and duties of an RP and be able to satisfy any additional conditions imposed under the Insolvency Practice Schedule.15 Within 5 business da

27、ys of the RPs appointment(or such longer period as the RP allows),each director of the Company must also sign and give the RP a declaration(Directors Declaration)stating whether,in the directors opinion,there are reasonable grounds to believe that:the Company has entered into a transaction that woul

28、d be voidable under section 588FE of the Corporations Act(other than an unfair preference)if the Company were being wound up;and the Eligibility Criteria were met in relation to the Company at the time the Restructuring began,and set out the reasons for that opinion.16 3.Initial notices to creditors

29、 and the Australian Securities&Investments Commission(ASIC)Within 1 business day of their appointment,the RP must:publish notice of their appointment on the ASIC Published Notices website;17 and send notice of their appointment and certain accompanying information(including an explanation of the pro

30、cess and the process of making a Restructuring Plan)to as many of the Companys creditors as reasonably practicable.18 Further,during the Restructuring phase,every public document and negotiable instrument must set out the phrase(restructuring practitioner appointed)after the Companys name where it f

31、irst appears.19 The RP must also sign a Declaration of Relevant Relationships and Interests(DIRRI)and ensure a copy is provided to creditors and lodged with ASIC as soon as practicable after being appointed.20 In addition,if the DIRRI becomes out-of-date or the RP becomes aware of an error in it,the

32、 RP must,as soon as practicable,make a replacement DIRRI and provide copies to creditors and ASIC.21 15 Insolvency Practice Rules(Corporations)2016(IPR),r 20-2 16 Corporations Regulations,reg 5.3B.49(2)(b)&(c).17 Corporations Regulations,reg 5.3B.50(1);see also ASIC Published Notices website:https:/

33、publishednotices.asic.gov.au/18 Corporations Regulations,reg 5.3B.50(2)19 Corporations Act,s 457B(1)20 Corporations Act,s 453D(1)-(3)21 Corporation Act,s 453D(4)-(6)4.Development of the Restructuring Plan Following the RPs appointment,the Company has 20 business days beginning on the day the Restruc

34、turing begins(Proposal Period)22 to prepare23 and execute24 a restructuring plan(Restructuring Plan or Plan)with the assistance of the RP.25 This Proposal Period can be extended:by the RP(once and by no more than 10 business days)if the RP is satisfied on reasonable grounds that requiring the Compan

35、y to give a Restructuring Plan within the Proposal Period would not be reasonable in the circumstances;26 or by the Court on application by the Company.27 If the Proposal Period is extended,the RP must lodge with ASIC notice of the extension and give a copy of the notice to as many of the Companys c

36、reditors as reasonably practicable,in each case,within 2 business days after the extension is granted.28 Contents of the Restructuring Plan The Restructuring Plan must:29 be in the approved form;30 identify what Company property is to be dealt with under the Restructuring Plan and how that property

37、will be dealt with;provide for the remuneration of the RP for the Restructuring Plan;and specify the date on which the Restructuring Plan was executed.The Restructuring Plan will be taken to contain the prescribed Standard Terms(see the box Standard Terms for a Plan for what this requires)31 which a

38、re designed to ensure all creditors are treated fairly.32 A Restructuring Plan is void to the extent that it is inconsistent with any of the Standard Terms.33 The Restructuring Plan may:34 authorise the RP to deal with the identified property in the manner specified in the Restructuring Plan;provide

39、 for any matter relating to the Companys affairs;and 22 Corporations Regulations,reg 5.3B.17(1)23 Corporations Regulations,reg 5.3B.15(1)24 Corporations Regulations,reg 5.3B.14(1)(b)25 Corporations Act,s 453E(1)(b)26 Corporations Regulations,reg 5.3B.17(2)and(3)27 Corporations Regulations,reg 5.3B.1

40、7(4)28 Corporations Regulations,reg 5.3B.17(5)29 Corporations Regulations,reg 5.3B.15(2)30 ASIC has released a word version Template of the approved form.https:/asic.gov.au/regulatory-resources/insolvency/insolvency-for-directors/restructuring-and-the-restructuring-plan/31 Corporations Regulations,r

41、eg 5.3B.27 32 Corporations Regulations,reg 5.3B.27 33 Corporations Regulations,reg 5.3B.27(2)34 Corporations Regulations,reg 5.3B.15(3)Standard Terms for a Plan(Reg 5.3B.27)1.all admissible debts and claims rank equally;2.if the total amount paid by the Company under the plan in respect of those deb

42、ts and claims is insufficient to meet those debts or claims in full,those debts and claims will be paid proportionately;3.no creditor is entitled to receive,in respect of their admissible debt or claim,more than the amount of that debt or claim;4.the amount of an admissible debt or claim will be asc

43、ertained as at the time immediately before the Restructuring began;and 5.a secured creditor will be a creditor only to the extent the value of its claim exceeds the value of its security(or,if the secured creditor realises security while the Plan is in force,to the extent any balance remains due to

44、the creditor after deducting the net amount realised).8|Baker McKenzie be conditional on the occurrence of a future event(i.e.a condition precedent),provided the Restructuring Plan specifies that event and by when it needs to occur(which cannot be more than 10 business days after the Restructuring P

45、lan is accepted by creditors).The Restructuring Plan must not:35 provide for the transfer of property(other than money)to a creditor;or provide for the Company to make payments under the plan in respect of an admissible claim,more than three years after the Restructuring Plan is made.No third party

46、releases Given Restructuring Plans can only bind creditors of the Company to the extent that the creditor has an admissible debt or claim,36 Restructuring Plans cannot release claims against third parties,such as guarantors.Employees Unlike a DOCA,37 there is no requirement for a Restructuring Plan

47、to give priority to eligible employee creditors.This is consistent with payment of all employee entitlements being a prerequisite for putting a Restructuring Plan to creditors(see Section 5.Prerequisites for putting the Restructuring Plan to creditors below).Restructuring Proposal Statement The Rest

48、ructuring Plan must also be accompanied by a Restructuring Proposal Statement that includes a schedule of debts and claims(Schedule of Claims),which is in the approved form38 and contains such information as that form requires.39 5.Prerequisites for putting the Restructuring Plan to creditors Before

49、 the Restructuring Plan can be put to creditors:(Execution)the Restructuring Plan must be signed by the Company within the Proposal Period;40 (RP Declaration)the RP must(as soon as practicable after the Restructuring Plan is executed)prepare and sign a declaration(RP Declaration),41 which:a.states w

50、hether the RP believes on reasonable grounds that:the Company meets the Eligibility Criteria;if the Restructuring Plan is made,the Company is likely to be able to discharge the obligations created by the Restructuring Plan as and when they become due and payable;and all information required to be se

51、t out in the Restructuring Proposal Statement has been set out;and where the RP does not hold this belief,states that and sets out the reasons for that conclusion;and 35 Corporations Regulations,reg 5.3B.15(4)36 Corporations Regulations,reg 5.3B.29(2)(a)37 Corporations Act,s 444DA 38 ASIC has releas

52、ed a word version Template of the approved form.https:/asic.gov.au/regulatory-resources/insolvency/insolvency-for-directors/restructuring-and-the-restructuring-plan/39 Corporations Regulations,reg 5.3B.14(1)(a)(ii)and 5.3B.16 40 Corporations Regulations,reg 5.3B.14(1)(b)41 Corporations Regulations,r

53、eg 5.3B.14(1)(c)b.identifies the name of any creditor who would be a party to the Restructuring Plan if made(Affected Creditor)42 that is a related entity of the RP(and the nature of their relationship);43 and (Employee entitlements&Tax Returns)the Company must have(or substantially have):o paid all

54、 employee entitlements44 that are payable;and o given all returns,notices,statements,applications or other documents as required by taxation laws within the meaning of the Income Tax Assessment Act 1997(Cth),45 although tax debts do not need to have been paid only the required returns need to have b

55、een given.6.Putting the Restructuring Plan to creditors Assuming the above mentioned prerequisites are met,a Company can propose the Restructuring Plan to creditors during the Proposal Period,which involves the RP:sending to as many Affected Creditors as reasonably practicable a copy of the Restruct

56、uring Plan,the Standard Terms,the Restructuring Proposal Statement and the RP Declaration;and asking each Affected Creditor other than those who are the RP,or related to the Company or the RP(Excluded Creditors)to vote on the Restructuring Plan in writing and verify/dispute the Companys assessment o

57、f its admissible debt or claim in the Schedule of Claims.46 The RP must also lodge a copy of the Restructuring Plan,the Restructuring Proposal Statement and RP Declaration with ASIC within 2 business days.47 7.Voting on Restructuring Plan and disputing Companys assessment of admissible debts and cla

58、ims Creditors typically have 15 business days commencing on the date the Restructuring Plan,the Restructuring Proposal Statement and RP Declaration are given to creditors(Acceptance Period)to vote on the Restructuring Plan and verify or dispute the Companys assessment of their admissible debts or cl

59、aims.This Acceptance Period may be longer than 15 business days if:the RP issues a Significant Variation Notice in respect of the Schedule of Claims(see below under Creditors may dispute Schedule of Claims/status as Excluded Creditor),in which case the Acceptance Period will be the longer of the 15

60、business day period and the period commencing on the date the Restructuring Plan,the Restructuring Proposal Statement and RP Declaration are given to creditors and ending 5 business days after the Significant Variation Notice is given;or the Court orders that the Acceptance Period be extended(in whi

61、ch case,as long as the Court so orders).48 42 Corporations Regulations,reg 5.3B.01 43 Corporations Regulations,reg 5.3B.18 44 Employee entitlements is defined in s 596AA(2)and(3)of the Corporations Act and includes superannuation contributions payable by the Company 45 Corporations Regulations,reg 5

62、.3B.14(1)(e)and 5.3B.24 46 Corporations Regulations,regs 5.3B.14(1)(d)and(2)and 5.3B.21 47 of the RP giving copies of those documents to Affected Creditors:Corporations Regulations,reg 5.3B.52 48 Corporations Regulations,reg 5.3B.21(3)and 5.3B.60 10|Baker McKenzie Creditors may dispute Schedule of C

63、laims/status as Excluded Creditor If a creditor disagrees with the Companys assessment of its debt or claim in the Schedule of Claims included in the Restructuring Proposal Statement or its status as an Excluded Creditor,the creditor may give written notice of the disagreement to the RP(Dispute Noti

64、ce)within 5 business days of receiving or becoming aware of the Restructuring Plan.49 A Dispute Notice may be submitted outside this initial 5 business day period,however,the creditor would need to explain the reason for the delay.50 Where this occurs and the RP is not satisfied that the creditor to

65、ok all reasonable steps to issue the Dispute Notice within the required 5 business day period,the RP may refuse to consider the Dispute Notice,51 in which case the RP must notify the Company and relevant creditor of this refusal and the RP will be taken to have recommended that the Schedule of Claim

66、s not be varied.52 Otherwise,the RP must adjudicate the Dispute Notice and notify the Company and Creditor of their recommendation for resolving the dispute as well as their reasons.53 If that recommendation is to vary the Schedule of Claims,the Company must vary the Schedule of Claims as soon as pr

67、acticable,54 and if the RP considers that the variation is significant,the RP must also notify the Company and all Creditors of the variation and remind Creditors that they can change their vote on the Restructuring Plan at any time before the Acceptance Period expires(Significant Variation Notice).

68、55 Where the Company or a creditor is dissatisfied with the RPs decision in respect of a Dispute Notice,they can apply to the Court for an order requiring the RP to consider the Dispute Notice and make a recommendation in respect of it,that the Schedule of Claims be varied and,or in the alternative,

69、that the Acceptance Period be extended.56 Voting The vote on a Restructuring Plan will be determined by a simple majority(in value)of Affected Creditors(other than Excluded Creditors57)who vote within the Acceptance Period,with all creditors voting as a single class.58 This is in contrast to the vot

70、ing in voluntary administration,which requires a majority in both value and number,with the administrator having a casting vote.The value of an Affected Creditors vote will generally be determined by reference to the value of its admissible debts or claims at the time the Restructuring began.59 Howe

71、ver,if a person is an Affected Creditor because they purchased another creditors debt or claim,the value of that Affected Creditors vote will be determined by reference to the value of the purchase price of that debt or claim.60 This is another clear contrast to voting in a voluntary administration.

72、It will be important for debt collectors and other debt traders to bear this in mind,particularly if they are in the business of buying debt at below par.It is an offence for any person to give,agree or offer to give,an Affected Creditor any valuable consideration with the intention of securing thei

73、r vote for or against a Restructuring Plan.61 49 Corporations Regulations,reg 5.3B.22(1)-(3)50 Corporations Regulations,reg 5.3B.22(3)(a)(iii)51 Corporations Regulations,reg 5.3B.22(5)52 Corporations Regulations,reg 5.3B.22(6)53 Corporations Regulations,reg 5.3B.22(7)54 Corporations Regulations,reg

74、5.3B.22(8)55 Corporations Regulations,reg 5.3B.22(7)and 5.3B.23(2)56 Corporations Regulations,reg 5.3B.60(2)57 Corporations Regulations,reg 5.3B.25(2)(c)58 Corporations Regulations,reg 5.3B.25(1)59 Corporations Regulations,reg 5.3B.25(2)(a)(i)60 Corporations Regulations,reg 5.3B.25(2)(a)(ii)61 Corpo

75、rations Regulations,reg 5.3B.25(3)8.Making the Restructuring Plan If a majority of creditors(in value)who vote during the Acceptance Period,vote to accept the Restructuring Plan,the Restructuring Plan is taken to have been made on:(if the Restructuring Plan is expressed to be conditional upon the oc

76、currence of a specified event within a specified period,and the event occurs within that period)the day after the specified period ends;and (otherwise)the day after Acceptance Period ends.62 Upon the Restructuring Plan being made,the Restructuring phase ends,63 the RP of the Company becomes the RP f

77、or the Restructuring Plan(unless the Board resolves to appoint someone else)64 and the Restructuring Plan becomes binding on the Company,its officers,members and creditors to the extent of their admissible debts or claims(with some exceptions).65 The Restructuring Plan has the same force and validit

78、y as if it were a deed executed by each of the parties to the Restructuring Plan.66 Once made,a Restructuring Plan can only be varied by court order on the Courts own initiative or on the application of the Company,an Affected Creditor,the RP or ASIC.67 9.Ending the Restructuring and consequences Th

79、e Restructuring and Restructuring Plan phases will end in the circumstances specified below,in each case,whichever occurs first:Phase Circumstances where Phase will terminate Restructuring (Restructuring Plan is made)if Restructuring Plan is made by the Company;68 (Director declaration to end)if Dir

80、ectors declare in writing that the Restructuring will end on a specified day,and provide a copy of that declaration to the RP and creditors before the specified day;69 (No Restructuring Plan proposed)if the Company fails to propose a Restructuring Plan within the Proposal Period;70 (Proposal lapses

81、because Restructuring Plan not accepted)if the Companys proposal to make a Restructuring Plan lapses,because it is not accepted by majority of creditors(in value)within the Acceptance Period;71 (Proposal lapses because RP cancels the Proposal)if the Companys proposal to make a Restructuring Plan lap

82、ses because the RP has cancelled the proposal(before the Restructuring Plan is made)as the RP became aware that:a.information in the Restructuring Plan is inaccurate or incomplete and the matter will likely affect Companys ability to meet its obligations under the Restructuring Plan if made;72 b.the

83、 Restructuring Proposal Statement did not disclose one or more Affected Creditors;73 c.the Restructuring Proposal Statement was deficient because of material error or omission;74 or 62 Corporations Regulations,reg 5.3B.26 63 Corporations Regulations,reg 5.3B.02(1)(j)64 Corporations Regulations,reg 5

84、.3B.33 65 Corporations Regulations,reg 5.3B.26(2)66 Corporations Regulations,reg 5.3B.26 67 Corporations Regulations,reg 5.3B.61 68 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(j)69 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(a)70 Corporations Act,s

85、 453A(b)and Corporations Regulations,reg 5.3B.02(1)(b)71 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(c)and 5.3B.20(1)(a)72 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(c)and 5.3B.20(1)(b)and(2)(a)73 Corporations Act,s 453A(b)and Corporations Regulat

86、ions,reg 5.3B.02(1)(c)and 5.3B.20(1)(b)and(2)(b)74 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(c)and 5.3B.20(1)(b)and(2)(c)12|Baker McKenzie Phase Circumstances where Phase will terminate d.there has been a material change in the Companys circumstances,which was not foresha

87、dowed in the Restructuring Proposal Statement and is capable of affecting an Affected Creditors vote;75 (RP terminates Plan)if the RP terminates the Restructuring by notice to the Company and creditors,because the RP believes on reasonable grounds that:a.the Company does not meet the Eligibility Cri

88、teria;b.it is not in the creditors interests to make a Restructuring Plan;c.it is in the creditors interests for the Restructuring to end;or d.it is in the creditors interests for the Company to be wound up;76 (Court order)if a court orders the Restructuring to end;77 (Administrator or Liquidator)if

89、 an administrator,liquidator or provisional liquidator is appointed to the Company.78 Restructuring Plan (Satisfaction)if all obligations of the Company and other parties to the Restructuring Plan have been fulfilled and all admissible claims or debts have been dealt with in accordance with the Rest

90、ructuring Plan-on the date this occurs;79 (Court order)if the Court makes an order terminating the Restructuring Plan-on the date specified in the Court order;80 (Failure of condition precedent)if the Restructuring Plan is subject to a condition being satisfied within a specified period(being a peri

91、od not longer than 10 business days),and that condition is not met within that period-on the next business day;81 (Unrectified breach)if there has been breach of the Restructuring Plan that remains unrectified for 30 business days-on the next business day;82 (Administrator or Liquidator)if an admini

92、strator,liquidator or provisional liquidator is appointed to the Company-on the date the appointment occurs.83 If the Restructuring Plan terminates on account of the Restructuring Plan being fully satisfied:the Company can retain any property not required to be distributed to creditors under the Pla

93、n;and the Company is released from all admissible debts and claims that arose before the Restructuring commenced.84 However,if the Restructuring Plan terminates for any of the other reasons,any admissible debt or claim that has not been dealt with in accordance with the Restructuring Plan is taken t

94、o be due and payable on the first business day after the day on which the termination occurs.85 75 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(c)and 5.3B.20(1)(b)and(2)(d)76 Corporations Act,s 453A(b)and 453J and Corporations Regulations,reg 5.3B.02(1)(d).77 Corporations Ac

95、t,s 453A(b)and Corporations Regulations,reg 5.3B.02(1)(e).78 Corporations Act,s 453A(b)and Corporations Regulations,reg 5.3B.02(f)and(g)79 Corporations Regulations,reg 5.3B.31(1)(a)80 Corporations Regulations,reg 5.3B.31(1)(b)81 Corporations Regulations,reg 5.3B.31(1)(c)82 Corporations Regulations,r

96、eg 5.3B.31(1)(d)83 Corporations Regulations,reg 5.3B.31(1)(e)and(f)84 Corporations Regulations,reg 5.3B.31(2)85 Corporations Regulations,reg 5.3B.31(3)10.Effect on key stakeholders The implications for a Companys key stakeholders of the Company entering into Restructuring or becoming subject to a Re

97、structuring Plan,are summarised below:Restructuring phase Restructuring Plan phase Officers Insolvent Trading Safe Harbour A directors duty to prevent insolvent trading in s 588G(2)of the Corporations Act does not apply in respect of debts that are incurred by the Company:during the Restructuring ph

98、ase;and in the ordinary course of the Companys business or with the consent of the RP or leave of the court.86 Directors remain in control(mostly)The powers of the Companys officers are not suspended,and the Company remains in control of its business,property and affairs.87 However,(Transactions not

99、 in ordinary course)Directors require the RPs consent or leave of the Court before they can approve or enter into on behalf of the Company,transactions or dealings affecting Company property that are not in the ordinary course of the Companys business.88 Transactions entered into in breach of this r

100、equirement are void,unless the Court orders otherwise.89 (Duty to assist RP)Directors are required to assist the RP by attending on them,providing the RP with information about the Companys business,property,affairs and financial circumstances and permitting the RP to inspect and take copies of the

101、Companys books.90 No insolvent trading safe harbour No specific provisions apply to vary the application of the standard insolvent trading prohibition in s 588G(2)of the Corporations Act while a Company is subject to a Restructuring Plan.Bound by Plan Officers of the Company are bound by Restructuri

102、ng Plan,91 but they remain in control of the Company during the Restructuring Plan phase.Shareholders Stay on share transfers and other alterations A transfer of shares in a company,or an alteration of the status of its shareholders,during the Restructuring is void unless done with the consent of th

103、e RP or pursuant to an order of the Court.92 No stay on share transfer and other alterations Bound by Restructuring Plan Shareholders are bound by a Restructuring Plan.93 Secured Creditors Unperfected security interests vest in Company When a Company enters Restructuring,all PPSA security interests

104、granted by the No moratorium on enforcement Court can still order Secured Party not to realise security 86 Corporations Act,s 588GAAB 87 Corporations Act,s 453K(1)88 Corporations Act,s 453L(1)89 Corporations Act,s 453L(5)90 Corporations Act,s 453F 91 Corporations Regulations,reg 5.3B.29(2)(c)92 Corp

105、orations Act,s 453P 93 Corporations Regulations,reg 5.3B.29(2)(c)14|Baker McKenzie Restructuring phase Restructuring Plan phase Company which remain unperfected as at the date the Company enters Restructuring,will be taken to have vested in the Company immediately prior to the Restructuring commenci

106、ng.94 Moratorium on enforcement Secured creditors cannot enforce their security interest during the Restructuring,95 unless:the RP consents or the Court grants leave;96 the secured creditor has security over the whole or substantially the whole of the Companys assets and enforces its security intere

107、st within 13 business days of being notified that the Restructuring has commenced(Decision Period);97 the secured creditor commenced enforcement before the Restructuring began;98 or the secured creditors security interest is over perishable property.99 Court may order secured party not to realise se

108、curity Subject to s 454C,Court may(on the RPs application)order a secured creditor not to realise or otherwise deal with its security interest,except as permitted by order,but only if realising that security interest would have a material adverse effect on achieving the purposes of a Plan and the se

109、cured creditors interest will be adequately protected.100 Bound by Restructuring in limited circumstances Secured creditors(including owners or lessors of PPSA retention of title property)will only be bound by a Restructuring Plan:to the extent their debt cannot be satisfied out of the realisable va

110、lue of their security interest(s);or they voted in favour of the Restructuring Plan.101 In addition,secured creditors remain free to realise and otherwise deal with their security,unless they voted in favour of a Restructuring Plan that prevents them from doing so or the Court so orders.102 Limits o

111、n RP powers to deal with secured property The RP cannot dispose of encumbered property(other than PPSA retention of title property),unless:the disposal is in the ordinary course of the Companys business;103 the secured party consents in writing;104 or with the Courts leave(which can only be granted

112、if the Court is satisfied that arrangements have been made to adequately protect the secured partys interests).105 Owners and Lessors Moratorium on enforcement Owners and lessors of property being used by or in the possession of the Company-including leased premises and goods subject to retention of

113、 title or PMSI106 security interests-are prohibited from:taking possession or otherwise recovering that property;carrying out distress for rent;No moratorium on enforcement Generally,property rights remain unaffected A Restructuring Plan will not affect any right that an owner or lessor of property(

114、other than an owner or lessor of PPSA retention of title property)has in relation to that property,unless they voted in favour of a Restructuring Plan that affects that right or the Court so orders.108 As a creditor though,they can still be bound to the extent of their admissible debt or claim.94 Pe

115、rsonal Property Securities Act 2009(Cth)(PPSA),s 267(1)(a)(iiia),267(1)(b)(ii)and Corporations Act s 513CA 95 Corporations Act,s 453R(1)and item 1 of the table 96 Corporations Act,s 453R(2)97 Corporations Act,s 454C and definition of Decision Period in s 9 98 Corporations Act,s 454D.Note:under s 454

116、F,a court may(on an application brought by RP)limit the power of secured party to continue with such enforcement if satisfied that the secured partys interests will be adequately protected.99 Corporations Act,s 454E 100 Corporations Regulations,reg 5.3B.64 101 Corporations Regulations,reg 5.3B.29(2)

117、(a),(3)and(4).102 Corporations Regulations,reg 5.3B.29(4)and 5.3B.64(2).103 Corporations Regulations,reg 5.3B.39(2)(a)104 Corporations Regulations,reg 5.3B.39(2)(b)105 Corporations Regulations,reg 5.3B.39(2)(c)and(3)106 Purchase Money Security Interests for the purposes of the PPSA 108 Corporations

118、Regulations,reg 5.3B.29(5)and(6)Restructuring phase Restructuring Plan phase (if the owner or lessor is a PPSA Secured Party)otherwise enforcing the security interest,in each case,without the RPs consent or an order of the Court.107 This is the case,even if they have a contractual right to do so.No

119、priority for rent payable during Restructuring Unlike administrators,RPs are not personally liable for any rent payable in respect of property used by the Company during the Restructuring.As such,rent referable to the Restructuring Period will not be paid as a priority expense.Limits on RP powers to

120、 deal with third party property The RP for a Restructuring Plan cannot dispose of property used or occupied by the Company which is owned by a third party,unless:the disposal is in the ordinary course of the Companys business;the secured party consents;or with the Courts leave.109 Contracts and Ipso

121、 Facto Protection The appointment of a RP to a Company does not,of itself,constitute a repudiation of contracts to which the Company is a party.Ipso facto protections apply,which impose an automatic stay on counterparties enforcing against the Company contractual rights and self-executing provisions

122、,triggered purely by reason of(amongst other things):the Company being in Restructuring;the Companys financial position if it is in Restructuring,subject to a range of exclusions.110 Entry into a Restructuring Plan does not of itself constitute a repudiation of contracts to which the Company is a pa

123、rty.There are no specific ipso facto protections in respect of contractual rights triggered by reason of the Company entering a Restructuring Plan.However,the automatic stay arising from entry into Restructuring(mentioned left)is permanent.Court proceedings and director guarantees There is a morator

124、ium that:requires Courts to adjourn winding up applications and not appoint provisional liquidators,if the Court is satisfied that it is in creditors interests for the Company to continue the Restructuring rather being wound up or to have a provisional liquidator appointed to it;111 prohibits any:o

125、court proceeding against the Company or its property;or o enforcement process in relation to the Companys property,o being commenced or proceeded with,without the RPs consent or the Courts leave;112 requires Court officers(such as a sheriff or registrar)who have received written notice of the RPs ap

126、pointment,to:Moratorium ceases to apply.107 Corporations Act,s 453R(2)and(3)109 Corporations Regulations,reg 5.3B.39 110 Corporations Act,s 454N and 454R 111 Corporations Act,s 453Q.Early applications by RPs for adjournment of an existing winding up application under this provision suggest the test

127、is similar to that for adjournment during a voluntary administration:Re Dessco Pty Ltd 2021 VSC 94(26 February 2021);Re DST Project Management and Construction Pty Ltd 2021 VSC 108(9 March 2021)112 Corporations Act,s 453S and 453T 16|Baker McKenzie Restructuring phase Restructuring Plan phase o ceas

128、e taking action to sell Company property and distributing proceeds;and o deliver to the RP all Company property and sale proceeds that are in the court officers possession/paid into court(less court officers costs);113 prevents creditors enforcing guarantees against directors of the Company(and thei

129、r spouses and relatives)without the Courts leave.114 Public documents Must include in every public document and negotiable instrument the phrase(restructuring practitioner appointed)after the Companys name where it first appears.115 No notice required.Presumption of insolvency The Company will be ta

130、ken to be insolvent if it proposes a Restructuring Plan to its creditors.116 The Company will be taken to be insolvent if it proposes a Restructuring Plan to its creditors.117 11.RP-Remuneration and liability Remuneration An RP for a Company is entitled to be remunerated for necessary work properly

131、performed in relation to the Restructuring118 and the Restructuring Plan.119 In relation to the Restructuring phase,the amount of remuneration and method for working out the RPs remuneration must be set out in a resolution of the board,passed on or before the date the RP is appointed.120 In relation

132、 to the Restructuring Plan phase,the Plan must specify the remuneration that the RP is entitled to receive and may only do this by specifying:an amount of remuneration as a specified percentage of payments made to creditors in accordance with the Restructuring Plan;and a method of working out an amo

133、unt of remuneration that,in the event the board consents in writing to beginning or proceeding with proceedings relating to the plan,the RP would be entitled to receive for necessary work properly performed in relation to the proceedings.121 Liability An RP(during both the Restructuring and Restruct

134、uring Plan phases)is an agent of the Company,and is not personally liable for anything done,or omitted to be done,in good faith and without negligence in the exercise or performance(or purported exercise or performance)of their powers,functions or duties.122 This 113 Corporations Act,s 453U 114 Corp

135、orations Act,s 453W 115 Corporations Act,s 457B(1)116 Corporations Act,s 455A(2).117 Corporations Act,s 455A(2).118 Insolvency Practice Rules,r 60-1B(1)119 Insolvency Practice Rules,r 60-1C(1)120 Insolvency Practice Rules,r 60-1B(2)and(3)121 Insolvency Practice Rules,r 60-1C(2)and(3)122 Corporations

136、 Regulations,reg 5.3B.11(in respect of Restructuring)and 5.3B.42(in respect of Restructuring Plan).is in obvious contrast to administrators under Part 5.3A of the Corporations Act who are personally liable for certain debts which they cause the Company to incur during the voluntary administration pe

137、riod123 and certain rent in respect of property which the Company continues to use during the voluntary administration period.124 That being said-like administrators-RPs are entitled to be indemnified out of the Companys property(other than retention of title property subject to a PPSA security inte

138、rest)for:any debts or liabilities incurred,or damages or losses sustained,in good faith and without negligence,in the performance(or purported performance)of their functions,duties and powers;and their remuneration,125 which indemnity has priority over certain debts126 and is secured by a lien over

139、the Companys property.127 123 Corporations Act,s 443A 124 Corporations Act,s 443B 125 Corporations Act,s 456J(in respect of Restructuring)and Corporations Regulations,reg 5.3B.43(in respect of Restructuring Plan)126 Corporations Act,s 456K(in respect of Restructuring)and Corporations Regulations,reg

140、 5.3B.44(in respect of Restructuring Plan)127 Corporations Act,s 456L(in respect of Restructuring)and Corporations Regulations,reg 5.3B.45(in respect of Restructuring Plan)Part B-Simplified Liquidation Process Australias new insolvency regimes for small business|19 Part B-Simplified Liquidation Proc

141、ess The Federal Governments reform package also introduced a simplified liquidation process(Simplified Liquidation)with reduced investigation and meeting requirements and more streamlined reporting.This process is designed to offer a cheaper and faster liquidation process for companies with liabilit

142、ies less than$1 million.1.Eligibility A liquidator may adopt the Simplified Liquidation process in any creditors voluntary liquidation(CVL)where they believe on reasonable grounds that certain eligibility criteria(Simplified Liquidation Eligibility Criteria)are satisfied,128 including that:a trigger

143、ing event has occurred in relation to the Company(which term includes most of the events that would trigger a normal creditors voluntary liquidation;129 the Companys total liabilities do not exceed$1 million,where liability is defined to mean any liability or obligation;130 the Company will not be a

144、ble to pay its debts in full within 12 months after the CVL commenced;131 no person who is(or has been within the preceding 12 months)a director of the Company,has been a director of another company that has undertaken Restructuring or the Simplified Liquidation process within the preceding 7 years,

145、unless that other company:i.was a related body corporate of the Company,and ii.its Restructuring or Simplified Liquidation commenced not more than 20 days before the day on which the Company began to follow the Simplified Liquidation process;132 the Company has not been subject to a Restructuring or

146、 a Simplified Liquidation within the preceding 7 years(unless the Company has been under a Restructuring which terminated no more than 20 business days before the day on which the Company began to follow the Simplified Liquidation process;133 and the Company has lodged all tax returns,notices,statem

147、ents,applications or other documents required by taxation laws.134 Within 2 business days after the day a liquidator adopts the simplified liquidation process,the Liquidator must lodge with ASIC a notice of that adoption(together with a copy of SL Director Declaration(defined below).135 2.What will

148、be different from a normal CVL?The Simplified Liquidation process preserves and applies most of the framework that applies to a normal CVL.However,with a simplified liquidation,particular aspects of the regular CVL process do not apply.136 Critically:128 Corporations Act,s 500A(1)129 Corporations Ac

149、t,s 500AA(1)(a)and definition of triggering event in s 489F.130 Corporations Act,s 500AA(1)(d)and Corporations Regulations,reg 5.5.03(1)131 Corporations Act,s 500AA(1)(c)132 Corporations Act,s 500AA(1)(e)and Corporations Regulations,reg 5.5.03(2)133 Corporations Act,s 500AA(1)(f)and 2(c)and Corporat

150、ions Regulations,reg 5.5.03(3)and(5)134 Corporations Act,s 500AA(1)(g)135 Corporations Regulations,reg 5.5.06(2)136 Corporations Act,s 500AE 20|Baker McKenzie (Reduced circumstances in which a liquidator can seek to claw back unfair preferences from unrelated creditors)Unfair preferences will not be

151、 voidable under s 588FE of the Corporations Act where:o the relevant transaction was entered into,or an act for the purposes of giving effect to it occurred,prior to the day that is 3 months before the relation-back day,and no creditor under the transaction is a related entity of the Company;or o th

152、e relevant transaction was entered into,or an act for the purposes of giving effect to it occurred,during the 3 month period ending on the relation-back date(or after that date but on or before the day the liquidation began),the transaction results in the creditor receiving from the Company no more

153、than$30,000 in value(whether in one transaction or in total from a series of related transactions),and no creditor under the transaction is a related entity of the Company;137 (Reduced investigation and reporting requirements)liquidators will not be required to submit section 533 reports to ASIC,unl

154、ess there are reasonable grounds to believe there has been corporate misconduct;138 (No meetings or committees of inspection)there will be no requirement to call creditors meetings or the ability to form committees of inspection;139 (Reduced circumstances for review)ASIC and creditors cannot appoint

155、 a reviewing liquidator to carry out a review of the liquidation.140 However,Courts still retain the power to appoint a reviewing liquidator and also inquire into the liquidation either on their own initiative or on the application of the Company,the liquidator,ASIC,or a person with a financial inte

156、rest in the external administration(such as a creditor of the Company).(Simplified proof process)there is also provision for regulations to be passed which stipulate a more simplified proof of debt and dividend process,141 however at the time of writing,such regulations have not been passed.3.Safegu

157、ards to prevent misuse The Simplified Liquidation regime includes some safeguards to prevent misuse of the process.SL Director Declaration Within 5 business days after the CVLs commencement,the Directors are required to give the liquidator a declaration if they believe,on reasonable grounds,that the

158、 Simplified Liquidation Eligibility Criteria will be met in relation to the Company(SL Director Declaration).142 Notice to all members and creditors At least 10 business days before adopting the Simplified Liquidation process,the liquidator must provide all members and creditors with a notice that i

159、ncludes:a statement that the liquidator believes on reasonable grounds that the Simplified Liquidation Eligibility Criteria will be met in relation to the Company when the process is adopted;an outline of the Simplified Liquidation process;and 137 Corporations Regulations,reg 5.5.04 138 Corporations

160、 Act,s 500AE(2)(a)and(3)(f);Corporations Regulations,reg 5.5.05 139 Corporations Act,s 500AE(2)(b)-(e)140 Corporations Act,s 500AE(2)(f)141 Corporations Act,s 500AE(3)and(e)142 Corporations Act,s 498 Australias new insolvency regimes for small business|21 a statement that liquidator will not adopt t

161、he Simplified Liquidation Process if at least 25%(in value)of the creditors direct the liquidator not to use it.143 Restrictions on using process and transitioning back to a normal CVL A liquidator must not use the Simplified Liquidation process if:more than 20 business days have passed since the CV

162、L commenced;144 the liquidator failed to give the notice referred to above;145 or at least 25%(in value)of the Companys creditors have requested the liquidator not to follow the Simplified Liquidation process.146 For the purposes of assessing whether the 25%in value test has been met,the value of th

163、e creditors at a particular time is to be worked out by reference to the value of the creditors claims against the company that are known at the time.However,creditors who are related entities of the company are not to be taken into account.147 A liquidator must also cease using the Simplified Liqui

164、dation process if:the Simplified Liquidation Eligibility Criteria are no longer met in relation to the Company;148 or the Liquidator believes on reasonable grounds that the Company(or its directors)engaged in fraudulent or dishonest conduct that has had or is likely to have a material adverse effect

165、 on creditors interests(whether as a whole or a particular class).149 Where a liquidator ceases following the Simplified Liquidation process because of one of the circumstances described above,the liquidation will continue as a regular CVL.However,in addition,the liquidator is required to:lodge noti

166、ce of the cessation of the Simplified Liquidation process with ASIC within 2 business days;150 and lodge a section 533 Report within 6 months of the Simplified Liquidation ceasing,if at any time during the simplified liquidation process,it appeared to the liquidator that any of the circumstances tha

167、t would normally have to be reported in a section 533 Report,existed.151 Cessation of the Simplified Liquidation process does not affect the validity of anything that was done in good faith in relation to the Company before the cessation.152 143 Corporations Act,s 500A(3)144 Corporations Act,s 500A(

168、2)(a)145 Corporations Act,s 500A(2)(b)and(3)146 Corporations Act,s 500A(2)(c)and 500AB 147 Corporations Act,s 500AD;Corporations Regulations,reg 5.5.09 148 Corporations Act,s 500AC(1)(a)149 Corporations Act,s 500AC(1)(b);Corporations Regulations,reg 5.5.07 150 Corporations Act,s 500AC(2);Corporation

169、s Regulations,reg 5.5.08(2)151 Corporations Act,s 500AC(2);Corporations Regulations,reg 5.5.08(4)152 Corporations Act,s 500AC(2);Corporations Regulations,reg 5.5.08(3)Resources Australias new insolvency regimes for small business|23 Resources ASIC Resources and Guides ASIC Published Notices website:

170、https:/publishednotices.asic.gov.au/browsesearch-notices/Restructuring Plan Process:https:/asic.gov.au/regulatory-resources/insolvency/insolvency-for-directors/restructuring-and-the-restructuring-plan/Simplified Liquidation:https:/asic.gov.au/regulatory-resources/insolvency/insolvency-for-directors/

171、simplified-liquidation/Legislation/Regulations/Rules Corporations Amendment(Corporate insolvency Reforms)Act 2020(Cth):https:/www.legislation.gov.au/Details/C2020A00130 Corporations Amendment(Corporate Insolvency Reforms)Regulations 2020(Cth):https:/www.legislation.gov.au/Details/F2020L01678 Insolve

172、ncy Practice Rules(Corporations)Amendment(Corporate Insolvency Reforms)Rules 2020(Cth):https:/www.legislation.gov.au/Details/F2020L01678 Baker McKenzie Publication Statutory Demands:https:/ Contact Information Maria OBrien Partner,Sydney +61 2 8922 5222 maria.obrien Peter Lucarelli Partner,Melbourne

173、+61 3 9617 4407 peter.lucarelli Ian Innes Partner,Brisbane +61 7 3069 6217 ian.innes Gavin RakoczyPartner,Sydney+61 2 8922 5462gavin.rakoczy Millie GarvinSpecial Counsel,Sydney+61 2 8922 5101millie.garvin Emmalee PacilloAssociate,Sydney+61 2 8922 5162 emmalee.pacillo Barbara DimovskaAssociate,Sydney

174、+61 2 8922 Cal DiolinSenior Associate,Sydney+61 2 8922 Baker McKenzie helps clients overcome the challenges of competing in the global economy.We solve complex legal problems across borders and practice areas.Our unique culture,developed over 70 years,enables our 13,000 people to understand local ma

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