Restructuring & Insolvency: 2023 Year in Review

Our Restructuring & Insolvency Team reflects on the year, the industry trends and significant matters of 2023. The Team also looks forward as to what the next 12 months may have in store.

‘In a year of challenges, our collective expertise continued to shine, delivering tailored solutions for clients. Collaborating across borders and practice groups, we proudly stand as trusted advisers and leaders in this dynamic field.’

Michael Lhuede – Practice Team leader

Industry insights 

Following two significant insolvency decisions in the High Court of Australia (Bryant v Badenoch Integrated Logging Pty Ltd and Metal Manufactures Pty Limited v Morton), insolvency professionals and creditors have had to reassess the value and requirements of proof   in unfair preference claim recoveries.

After hearing submissions from across the industry in July the Commonwealth Parliamentary Joint Committee on Corporations and Financial Services delivered its report, Corporate Insolvency in Australia.  In finding that “Australia’s corporate insolvency system is overly complex, difficult to access, and creates unnecessary cost and confusion for both debtors and creditors”, it made a total of 28 primary recommendations focussed upon the undertaking of a comprehensive review of our corporate insolvency laws.

The tensions as between FEG and insolvency practitioners as to the priority for practitioner remuneration has continued however the decision In the matter of BCA National Training Group Pty Limited (in liq) delivered a win for practitioners although without putting the issues entirely to rest. The matter is currently on appeal.

Whilst AFSA issued guidelines as to the treatment of CGT liabilities in a bankruptcy the outcome has been far from satisfactory and the issue of potential personal liability continues to plague bankruptcy trustees.

The use of the Small Business Restructuring as a means of restructuring continues to grow with creditors showing a willingness to embrace workout proposals under this scheme, first introduced during COVID.

The Attorney-General convened an industry round table to address personal insolvency laws.  Following this there was a call for submissions in relation to several discrete proposals for reform of the Bankruptcy Act and we are now awaiting the outcome of that process.

Team movements

The team welcomed lawyers Daniel Paske (Sydney office) and Sebastian Clarke (Melbourne office), as well as exceptional paralegal team members Sara Miller and Dylan Cooke (Sydney office). We are excited to see our team continue to deliver excellent service to our clients in 2024.

Significant matters

Throughout the year, we continued to represent and advise our clients, across various industries and issues, including:

Korda Mentha
Acting for administrators of FTX Express Pty Ltd and FTX Australia Pty Ltd, both part of the FTX Group.  FTX Express was a digital currency exchange and FTX Aust operated an online trading platform for over-the-counter derivative financial products primarily connected with various digital assets (or cryptocurrency, such as Bitcoin) and related financial instruments.

Advising administrators generally in relation to their appointment to both companies and complex issues involving 30,000 customers of FTX in Australia.

Chifley Advisory
Acting on the behalf of the Liquidator, successfully defending against removal proceedings brought by the former director and his company, resulting in a dismissal with costs. The case offers valuable insights into liquidators’ duties and factors considered in removal proceedings.

BRI Ferrier
Acting in relation to an insolvent trading claim against a holding company (itself held by a company in the United Kingdom) and local director. Successfully addressed intricate issues surrounding the eligibility f secured debts paid by related parties for inclusion in the claim and navigated question of whether these related parties could be deferred behind other creditors under s588Y of the Corporations Act, ultimately securing a favourable outcome.

Intergra Insolvency
Acting for Adam Preiner, who was appointed by the Supreme Court of NSW as the receiver and manager of the assets and undertakings of the SWR Holding Unit Trust. Successfully clarified in legal proceedings that the section 553C does not apply to a receiver of trust assets, establishing that the fund should be replenished before any set-off can occur.

Recognition

This year, we have had some outstanding recognition – both for the team and our individuals – across our national Restructuring and Insolvency practice team. We are grateful for our clients and colleagues and are looking forward to another successful year in 2024.

The Legal 500 Asia Pacific

In the 2023 edition of The Legal 500 Asia Pacific, Piper Alderman was recognised across 12 areas of law including Restructuring and Insolvency.

A number of our team members were highlighted as recommended or key lawyers for this category, including Mike Hayes, Michael Lhuede, Cheryl Weston and Antony Disciscio.

The Best Lawyers in Australia

In the 2024 edition of The Best Lawyers in Australia, 54 of Piper Alderman’s lawyers are recognised across 43 legal areas including the following partners in our Restructuring and Insolvency team:

• Joanne Hardwick– Insolvency and Reorganisation Law, Litigation, Alternative Dispute Resolution
• Michael Lhuede– Insolvency and Reorganisation Law
• Louise Thompson– Insolvency and Reorganisation Law, Alternative Dispute Resolution
• Antony Disciscio– Alternative Dispute Resolution – One to Watch

Doyle’s Guide

In the 2023 rankings for Doyle’s Guide, Thomas Russell and Michael Lhuede were recognised as a Leading Insolvency & Restructuring Lawyers in New South Wales and Victoria respectively. Mike Hayes, Joanne Hardwick and Philip Stern was also Recommended.

We were also delighted to receive some very kind feedback from clients and contacts during the research process for the legal directories, including the following testimonials from the Legal 500 Asia Pacific: Australia, 2023 edition:

‘Knowledgeable and experienced in the field. Excellent network to provide services not just locally but also interstate and overseas. Demonstrated leadership by providing industry specific training to insolvency practitioners.’

‘The practice provides excellent legal services combined with strategic planning to ensure that their service offering goes beyond just providing legal advice. You feel like the firm is partnering with you to resolve a dispute or achieve an outcome. The firm works collaboratively to ensure the right people with the right experience drive the outcomes.’

‘The partners of Piper Alderman provide strong technical and commercial skills in the area of insolvency and reconstruction.’ 

‘A true expertise in bankruptcy. A real focus on technical insolvency law. Strong in the mid-market.’ 

‘Piper Alderman are extremely responsive to time-sensitive demands, and reallocate staff as required to attend to these urgent matters. Their charging has suitable regard to the size of the dispute and, where possible, is reflective of the commercial realities of any given matter.’ 

‘I have worked with Cheryl Weston on a number of occasions and find her to be an excellent practitioner in the area and great to deal with.’ 

‘Strong presence in the insolvency and restructuring sectors.’ 

Business Development

The Restructuring & Insolvency team actively produced and published a number of timely insights while partaking in a multitude of client and industry facing events, sponsorships, and partnerships.

A cornerstone of 2023 was the team’s Personal Insolvency Forum (PIF) event series hosted by Mike Hayes. The series kicked off in with the Annual Seminar hosted jointly by Piper Alderman and Adelaide University. The presenters at the seminar included national academics and a panel discussion including Mike Hayes on the potential impact of the Attorney General’s national bankruptcy roundtable. The further forums considered personal insolvency reform,  PJC report, update from ARITA’s national conference and culminated in a case update by some of our national insolvency practitioners. The seminar and forums were presented in-person and online.

Recent comments from attendees include:

“Good having the multiple speakers as it adds to interesting presentations.”

“A number of interesting cases. Well chosen.”

“Thank you for the very informative session!”

Mike Hayes continued in his role with ARITA’s National board with Michael Lhuede on the Victorian State Committee of ARITA.

Mike Hayes, Michael Lhuede and Thomas Russell all continue to be members of the Law Council of Australia’s Insolvency & Reconstruction Committee while all of our partners are members of ARITA.

Pro Bono

Our members continue to provide pro bono services in deserving hardship cases relevant to their field. Cases in the past 12 months have included:

• Acted for a migrant from a non-English speaking background who had been defrauded of her matrimonial settlement by a real estate agent.  We were successful in obtaining full compensation of the primary loss for our client.
• Acted for single mother of 3 young children whose former partner had procured our client to sign a personal guarantee for his business finance debts on the representation that there was no risk to their  matrimonial home.  We were successful at mediation in obtaining a settlement with the financier, which meant that her share of the equity in the home was largely retained by her.