The 140(th) anniversary of the Adelaide Law School gives me the occasion to reflect on some of the influences upon insolvency law that have occurred from the 19(th) century up until today. Locally the reflection includes the doctoral pursuits at Adelaide Law School by one of the South Australian Supreme Court's greatest Chief Justices, and the work of recent postgraduates, the teaching and scholarship of Adelaide academics past and present, or by the many Adelaide Law School undergraduates who have gone on to careers in law, journalism, politics or a multitude of other callings. My reflection goes beyond the state border to consider the many others who have influenced Australian insolvency law and practice, which is considered one of the world's best examples of insolvency and bankruptcy law. An Australian theory of insolvency does not yet exist or remains unidentified, and I start with a brief exploration of the theoretical position of insolvency law in Australia.

This chapter discusses the world's recent repositioning in insolvency and the roles being played by Australia and the Arab world. Driven by the UN, countries have been encouraged to adopt a Model Law for Cross-Border Insolvencies (UNCITRAL Model Law on Cross-Border Insolvency, 1997). Many countries have adopted the Model Law, including Australia with the Cross-Border Insolvency Act 2008 (Cth), yet in the Arab world, few have committed to this development. Some legal framework for cross-border insolvency is needed. This chapter explains and critiques the Model Law and then 'shares' three recent examples of cases brought in Australia with the assistance of the Model Law framework and invites the Arab world to follow.

This article considers whether the history of company liquidation and liquidators in Australia is largely unremarkable and English-centred by focusing on the uniqueness of the corporate insolvency practitioner. The role of the Australian liquidator is examined in three parts. First by looking at the present nature of the insolvency profession, then tracing the history and origins of liquidators in both England and Australia through to the present day, and finally examining the professional context of corporate insolvency practitioners and questioning whether or to what extent they in fact do constitute a profession. The role of the bankruptcy trustee necessarily is covered in parallel, being the precursor to the liquidator and in its own right given Australia's separate laws for personal and corporate insolvency.

Registration of a company with share capital sees a company formed as a separate legal entity with shareholders who have been issued and have paid in full or in part for their shares. Legislative provisions establish that members are limited to the paid-up amount of their shares and that in a liquidation there may be a call made on those members to contribute some or the rest of the amount unpaid on their shares. In the earliest days of this modern company law partly paid shares were common however current practice sees companies rarely being formed with fully paid shares. Consequently, in many liquidations there is no requirement to involve the contributories. This article considers whether it is useful to make amendments to the Corporations Act 2001 (Cth) to streamline and modernise the law of contributories.

Commercial leases have become much more visual to insolvency administrations during the COVID-19 pan- demic. Commercial leases legislation is state-based and we have seen legislation to assist tenants claiming rent relief underActs like theCommercialTenancies (COVID-19 Response) Act 2020 (WA). But as two recent cases have shown it is the Corpo- rations Act 2001 and corporate law principles that are central when there is rent to be paid under these commercial leases and there is an administrator or liquidator appointed to the tenant company.

The federal government has introduced a debt restructuring law for corporate MSMEs which is understandable given how badly they have been affected by the COVID-19 pandemic and the intense lobbying on behalf of this sized company. The new Part 5.3B of the Corporations Act is to provide relief beyond what exists in Part 5.3A. However, Harris and Symes show in this article there are broad concerns that the new Part will not be embraced as the reform falls short in a number of key areas for debtors, creditors and the professionals who are expected to recommend and then implement it.

This paper outlines three approaches to the question of a liquidator’s expenses and remuneration being paid from the company’s funds when that company is an insolvent trustee. It considers the interrelationship between equitable rights and the statutory priorities, and also looks at the history of these approaches. It concludes with suggestions for legislative change.

The Corporations Act 2001 (Cth) has been amended with the introduction of the Treasury Laws amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth) (Penalties Act 2019) to provide new civil penalty provisions, increase existing civil penalties, new criminal offences and increase terms of imprisonment for existing criminal offences.

Companies of all sizes fall into financial distress. At such point, some are governed by the directors and some move into a more formal external administration conducted by an insolvency practitioner. There are similarities and significant differences in what the law imposes on directors and insolvency practitioners. This article looks at the components of corporate governance for financially distressed companies in Australia, exploring who controls the entrants and exits, the timing, the diversity and the other components of those who manage financially distressed companies and draws international comparisons where relevant. Additionally, in exploring these components, it questions whether any inequalities can be justified and, if so, how they could be managed. A particular focus is on the Australian period when a company has entered a Deed of Company Arrangement and relevant comparisons with other jurisdictions are made.

The usefulness of litigation funding to enable litigation in insolvency that may not otherwise have been possible due to funding constraints has been widely recognised. However, concerns have been raised about potential abuse of litigation funding. In Australia, certain provisions of the Corporations Act 2001 (Cth) created an opportunity for the court to become involved in "approving" insolvent litigation funding agreements, and a system of "judicial oversight" consequently developed. This article provides an analysis of these "judicial guidelines", in order to assess the extent to which the system of judicial oversight in respect of insolvent litigation funding could serve to address some of the concerns that have been raised.

A successful corporate rescue will usually require retaining at least some of the value of contracts for supplying goods and services to the company being restructured as well as contracts that that company has with its customers. Ipso facto clauses make restructuring more difficult because they give the contractual counterparties leverage over the restructuring effort which can give the counterparty an advantage over other creditors. In an attempt to facilitate restructuring, the Parliament has introduced amendments to stay ipso facto clauses during restructuring efforts. However, this article argues that rather than encouraging and supporting restructuring efforts, the complex amendments are likely to make restructuring less certain and more difficult.

When pt 5.3A was introduced despite there being no mandatory involvement of the courts there was the expectation that they were 'endowed with a a general supervisory role' and had 'broad power to ensure the effective operation of the scheme.

Sometimes when walking through a national park, council parklands or a government reserve there is the proper developed path and then there is the informal path made by regular use.

Directors are under constant pressure to remain mindful of their complex corporate governance responsibilities. The complexities directors face are heightened when the company is in financial distress, as the courts suggest that the directors' duty to act in the best interests of the company includes having regard to the position of the creditors at such times. If the company is placed into a Pt 5.3A administration, then directors' powers are suspended but they continue to owe the relevant duties. Should the administration result in a Deed of Company Arrangement (DoCA), matters become more complex still. The directors' role is revived at the time that the DoCA takes effect, but significant questions remain as to how their powers may be exercised, to whom their duties are owed at this time, and the precise nature of the entity while under the DoCA. Although voluntary administration continues to be the third most utilised form of external administration behind court and creditor wind-ups respectively, the percentage of companies moving from administration into a DoCA has increased. This article examines the potential pitfalls to be considered when framing of a DoCA, the position of directors during the administration of the DoCA, the legal effect of the DoCA on the role of the creditors and the technical form of the company while under a DoCA.

Litigation has been the norm in insolvency matters in the Federal Court of Australia. More recently, the Federal Court has encouraged parties to mediate in order to settle insolvency disputes. This article deliberates on the adaption of two Singaporean initiatives – the use of time constraints in the Arb-Med-Arb Protocol and the Mediation Act 2016 (Singapore) and the use of specialist mediators. The article examines the current situation in Australia including an outline of the National Framework for the Federal Court of Australia. If a time constrained process for mediation by the Federal Court of Australia was adapted it could achieve a reduction in litigation time and costs, expedite the recovery of assets and further the growth of mediation as a tool for resolving insolvency disputes. While the Federal Court presently does use specialist mediators in its Native Title jurisdiction, this paper argues for the expansion of this practice to insolvency litigation. To do so could further enhance the Federal Court ‘exemplary’ case management in insolvency matters.

In 2016, following the collapse of Dick Smith Electronics there was a call for directors to be held personally liable to account in retailer insolvency with regard to certain behaviour, particularly in relation to pre-payment consumer creditors such as gift card holders. Although this call should not be and was not heeded, it does raise questions about the justifications for further protection of this class of creditors in an insolvency, which we consider in this article.