Insolvency

We have a broad range of specialist experience acting for various stakeholders within an insolvency context.  We act and have acted for parties in some of Western Australia’s larger or more complex corporate collapses and personal insolvencies, such as Westgem Investments, Bond Corp, the Westpoint group of companies, Diploma Constructions, Global Finance, and the Kevin Pollock bankruptcy.

We act for insolvency practitioners in:

  • Providing advice and acting in court proceedings relating to getting in assets, security priorities including the Personal Property Securities Act,  retention of title claims and liens; proceedings against unsecured creditors for unfair preferences
  • Proceedings against directors for insolvent trading, and against others for receiving assets or benefits in uncommercial or undervalue or related-party transactions
  • Vetting creditor reports and drafting deeds of company arrangement; providing advice in relation to statutory duties and professional obligations
  • Applications to the court to extend the convening period for creditors meetings

We provide strategic guidance to boards and individual directors of financially distressed companies, including:

  • Advice as to safe harbour, insolvent trading, and directors’ duties
  • Assistance with restructuring and turnaround, and deeds of company arrangement
  • Advice and representation in court proceedings, in defence of liquidator claims against directors for breach of directors’ duties, insolvent trading, and uncommercial or undervalue or related-party transactions
  • Applying to set aside statutory demands on the basis of a genuine dispute or offsetting claim
  • Resisting court applications to wind up companies

We assist business owners and individuals with:

  • Advice in relation to structuring
  • General guidance in respect of secured and unsecured debt, guarantees, tax debts, and strategies to move forward
  • Legal assistance in dealing with creditors, and tax release applications to the ATO based on serious financial hardship
  • Personal insolvency advice in respect of  bankruptcy, debt agreements (Part IX arrangements) and personal insolvency agreements (Part X arrangements), advice in respect of property recoverable in bankruptcy, advising executors in insolvent deceased estates
  • Defending asset recovery claims by bankruptcy trustees
  • Defending bankruptcy applications, or applying to set aside or annul bankruptcy orders

We act for creditors in enforcing their rights, and resisting claims made against them, such as:

  • Positional advice in an insolvency situation, including advice and court proceedings in relation to securities and priorities
  • Advice in relation to creditors meetings and voting
  • Lodging proofs of debt, proving claims, and challenging administrator and liquidator decisions
  • Enforcing securities by appointing receivers over companies or specific assets, mortgagee in possession actions, applications to reinstate deregistered companies, court applications to wind up companies and appoint liquidators
  • Claims against liquidators and receivers for breach of duty and negligence
  • Removing administrators and appointing replacements;defending unfair preference claims, and disputes with liquidators as to the value of securities and whether securities are enforceable
  • Issuing statutory demands and bankruptcy notices; and applying to wind up companies or to bankrupt individual debtors
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Our relevant experience includes:

  • Acted for the administrator then liquidator of a company involved in the Raine Square development, including resisting an application to replace the administrator, applications to extend meeting convening periods, defending an application to appoint a special purpose liquidator,  and acting in respect of various pieces of Supreme Court satellite litigation
  • Acted for principals calling on performance bonds issued by an insurer for Diploma Construction, when the construction company went into liquidation
  • Acted for creditor in a Supreme Court application to challenge the liquidator’s rejection of a $2.5million proof of debt
  • Acted for a creditor in relation to the administration of the (then) main commercial abalone enterprise in Western Australia.  This involved a restructure of the general industry and the government licensing regime to facilitate a deed of company arrangement by the creditor
  • Acted on the $7 million restructure of a grain storage and containerisation company, removal of receivers and refinancing with foreign investment
  • Acting for the liquidators of a national real estate group in a general advisory role as well as in litigation involving licensing and regulatory compliance, sale of the company’s rent roll, protection of confidential information, breach of director’s duties, assignment of causes of actions, and claims against trust funds held by third parties
  • Acted for the trustee in a significant bankrupt estate (creditors in excess of $30million) including investigations to trace the beneficial ownership and disposition of property, issuing statutory notices compelling production of documents and attendances of individuals for examination, and advice on sham transactions and statutory developments in bankruptcy asset recovery
  • Acted for liquidators in Supreme Court proceedings concerning the vesting of unperfected security interests under the Personal Property Securities Act 2009, including whether or not the Act applied, whether securities had been perfected, whether items were fixtures falling outside of the Act, and whether defensive equitable claims could defeat the operation of the Act
  • Acted for the bankruptcy trustee in Supreme Court proceedings concerning a significant preference claim
  • Acted in Supreme Court proceedings concerning priorities in relation to liquidator fees
  • Acted for the creditor in a successful Federal Circuit Court application to appoint a provisional trustee to property pending determination of a sequestration application, and a successful application for substituted service of documents through SMS text messages
  • Acted for directors in negotiating an informal personal insolvency agreement proposal with creditors, including advice to the directors on restructuring options for their related corporate entities; advice concerning insolvent trading liability and uncommercial transactions; and advice in relation to director penalty notices issued by the Australian Taxation Office
  • Acted for secured creditors in the administration of an accountancy practice, where the creditors were former partners of the practice, including advice relating to the appointment of a receiver, claims against third parties under guarantees, creditor meetings and proposed deeds of company arrangement, and litigation risks relating to underlying transactions
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