The Review - Summer 2016

The last substantive reforms to Australia’s insolvency system arose out of the Harmer inquiry, which was conducted in the 1980s. Since then, the corporate world has become a lot more complicated, and financial transactions much more complex. Calls for fresh reform to Australia’s insolvency system have been steadily growing.

In December 2015, the Federal Government issued its Innovation Statement which included proposals for insolvency law reform. Specifically, the Government is proposing to introduce a ban on enforcement of ipso facto clauses if the company is undertaking a restructure, to offer a safe harbour for directors if they appoint a restructuring adviser to develop a turnaround plan, and to provide a reduction in the current default bankruptcy period from 3 years to just 1 year. These changes are to be welcomed in principle but, as they say, the devil will be in the detail.

In a feature interview with Innovation Minister, the Hon Christopher Pyne MP, shared his views on the Government's innovation agenda with particular reference to the proposed insolvency reforms.

We have set out in this publication a number of articles that look at the proposed ipso facto and safe harbour reforms, as well as the Productivity Commission’s report in order to place these proposed reforms in their proper context. We also provide a global perspective on insolvency law reform by looking in particular at the reform agenda in Europe and the United States. This publication concludes with a short review of the Law Reform Bill 2015 introduced into Federal Parliament shortly before Christmas, which proposes some legislative changes to other aspects of insolvency law and regulation in Australia.

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Scott Atkins

I'm unapologetically determined and fearless. I pursue excellence. Always.

Scott Atkins Partner

Scott is the Chair of our Board and an internationally renowned insolvency and restructuring lawyer. He is an inaugural Fellow and a member of the Board of INSOL International. Scott is also Vice President of the Australian Restructuring Insolvency and Turnaround Association (ARITA).

Scott is a trusted adviser to Australia's leading banks and insolvency and restructuring practitioners and has acted on some of the industry's most complex and sensitive banking and insolvency advisory and dispute resolution matters.

Prior to joining HDY, Scott practiced for 7 years as in-house counsel with Commonwealth Bank Group. He is now our Client Relationship Partner for the CBA Group. He is also the co-leader of our cross-border insolvency practice and our regulatory enforcement practice. Scott is recognised by his peers for his leading expertise in cross-border insolvency, acting on both inbound engagements in Australia and advising Australian clients on outbound engagements in the USA, UK, Cayman Islands, Hong Kong and The Netherlands, among other jurisdictions.

Scott was the Australian delegate on the Advisory Committee on Comparative Law established by the American Bankruptcy Institute as part of its Commission to Study the Reform of Chapter 11 of the US Bankruptcy Code. This resulted in a landmark report for the reform of Chapter 11.

He is a published author on insolvency and cross-border insolvency. Most recently, Scott was one of the Australian contributors to the 2015 publication 'International Contributions to the reform of Chapter 11 U.S. bankruptcy code' which is volume 2 of the European and International Insolvency Law Studies series. He also authored the Australian chapter of Avoidance of Antecedent Transactions and Cross-Border Insolvency (INSOL International). Among other publications, he is the co-author, together with Professor Rosalind Mason, of the Australian chapter of Look Chan Ho's leading text: Cross-Border Insolvency: Cases and Materials (Kluwer International).

Scott is a visiting lecturer on cross-border insolvency at the University of Sydney in its undergraduate and postgraduate law programs lead by Professor John Stumbles.

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Mark Hilton

I walk with honour in dark places. Take my hand. We've got this.

Mark Hilton Partner

Mark specialises in banking recovery, including all forms of consumer and corporate recovery and insolvency. He has acted for banks and other financial institutions, receivers, liquidators and administrators for over 28 years.

Mark is a leading insolvency lawyer who has been involved in some of Australia's largest and most complex insolvency matters over the past decade.

He is known for his solid relationships with Australia's Big 4 Banks, as well as his expertise in recovery and enforcement, and litigation and dispute resolution.

Clients call upon Mark for his industry knowledge, achieved from being exposed to businesses across a spectrum of industries such as aged care, banking and financial services, retail, property development, manufacturing, pharmaceutical and infrastructure.

His background in commercial litigation has provided a basis for a substantial practice involving the recovery of loss associated with negligent valuations in connection with securitised loans.

Mark's willingness to embrace innovation is, among other things, evidenced by his coordination of the establishment of recovery extranets to assist financial institutions to monitor the status of recovery and enforcement action on secured and unsecured lending transactions.

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John Martin Partner

John is a leading lawyer in both financial sector dispute resolution (complex and regulatory) and corporate insolvency and restructuring, with a particular specialty in cross-border insolvencies. He is recognised by his clients, peers and legal directories as a leader in his field.
 

Domestically, John advises on large and complex insolvencies and assists in finding solutions for financial institutions with regulatory and other complex issues. His clients include several of Australia's major banks, as well as insolvency practitioners appointed to insolvent entities.

Internationally, John has advised in connection with insolvencies in England, Fiji, Bermuda, Cambodia, Cayman Islands, Brunei, and Norfolk Island. His cross-border experience includes acting for the liquidators of an insolvent bank, and various liquidators of insurance and reinsurance companies.

John is a recognised authority on insolvency issues, with articles published in media outlets such as The Australian Financial Review and the Insolvency Law Journal. He has presented at numerous domestic conferences as well as internationally in the US, England, South Africa, Singapore, Canada, New Zealand, and the Netherlands.

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Mark Schneider

Achieving our clients' business goals drives our strategy and advice. It's what we do.

Mark Schneider Partner

Mark is the partner responsible for managing our Brisbane office. He has broad experience in corporate restructuring, insolvency and banking and general commercial litigation. Mark specialises in resolving disputes, advising both banks and insolvency practitioners in relation to all aspects of the enforcement of securities and the realisation of distressed assets in Australia and internationally.

Mark has advised insolvency practitioners, secured and unsecured creditors including financial institutions and directors in relation to debt recovery, security enforcement, restructuring, formal insolvency procedures and dispute resolution throughout Australia and in Europe.

He takes pride in helping banks, financiers and their appointees implement practical strategies for resolving disputes, enforcing securities and realising distressed assets in Australia and internationally.

Mark regularly advises on secured creditors' rights, including undertaking complex security reviews and the intensive management of complex and sensitive debt positions.

Mark is sought out by clients involved in potential disputes who are concerned about protecting their reputation. He is experienced with alternative dispute resolution as well as appearing and instructing in the State and Federal Courts, including at Appellate level.

Mark has experience in many industry sectors including commercial, rural and residential property, hotels and leisure, retail, energy and resources (including mining services).

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Jonathon Turner

I strive to deliver expert advice tailored to my clients' objectives, goals and commercial drivers. Excellence is a habit, not an act.

Jonathon Turner Senior Associate

Jonathon has extensive experience in banking, financial services and corporate insolvency litigation, fraud and commercial dispute resolution. He has acted for leading institutions, corporates and insolvency practitioners both domestically and internationally.

Jonathon is a banking, financial services and corporate insolvency litigation expert. He is dual-qualified having been admitted as a solicitor in England and Wales.

He advises a range of clients including leading financial institutions, insolvency practitioners and corporates on a wide variety of contentious and non-contentious matters. He has particular experience of advising on corporate insolvency litigation, commercial litigation, contractual disputes, fraud related matters, breach of director duty litigation, corporate restructuring, security enforcement and cross-border insolvency law.

Prior to joining HDY in December 2015, Jonathon practiced as an associate in the disputes resolution group at Linklaters LLP, London where he specialised in corporate insolvency, banking and financial services litigation. During his time in London he acted in a number of high profile and complex matters arising out of the global financial crisis in 2008. Jonathon has acted in matters before the UK Court of Appeal and UK Supreme Court.

He has produced a number of articles on insolvency, litigation and recovery matters.

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