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In its 2017 report on the treatment of micro, small, and medium enterprises (MSMEs) in insolvency, the World Bank emphasised the importance of having an effective and efficient insolvency system to mitigate many of the challenges facing financially distressed MSMEs. These challenges include the lack of financial resources, a general lack of incentive to access insolvency procedures, creditor passivity, limited information, overlaps with the personal insolvency regime. In response to the ‘tsunami’ of MSME insolvencies that were expected following the economic impact of Covid-19, the Australian Government determined that the existing corporate insolvency framework of a one size fits all was no longer suitable. The simplified liquidation and debt restructuring regime was introduced by the Government in 2021 as a way of achieving a more effective and efficient insolvency system for MSMEs. It is the premise of this paper that the Australian Government small business insolvency law regime forms only part of what should be considered an efficient and effective insolvency framework for small business. Where effectiveness is measured by the extent to which the insolvency system achieves its intended objectives and efficiency is the measure of the extent to which the insolvency system achieves those objectives using the minimum amount of resources. The authors argue that the strategic use of technology is essential in predicting insolvency, lowering /saving costs, transforming insolvency work, and saving time. Accordingly, this paper seeks to highlight the importance of technology in an efficient and effective Australian small business insolvency framework.

The much-awaited introduction of the Insolvency Law Reform Act 2016 (Cth) (ILRA) and the related Insolvency Practice Rules (Corporations) 2016 (Cth) and Insolvency Practice Rules (Bankruptcy) 2016 (Cth) (the Rules) are collectively the most significant reform to the insolvency profession since the 1988 Harmer Report.1 Among other things, the objectives of this reform have been to remove unnecessary costs and increase efficiency in insolvency administrations, enhance communication and transparency between stakeholders and promote market competition on price and quality

The protected asset status given to a regulated superannuation fund under the Bankruptcy Act 1966(Cth)(the Act) plays a significant role in providing a discharged bankrupt with a ‘fresh start’, where fresh start is defined broadly to include a rehabilitation focus. Such support is considered necessary given recent demographics which depict the average Australian bankrupt as being aged 45 years or older, increasingly from a professional occupation, with higher levels of personal and household income and unsecured debt.

Full Text, Thesis (PhD Doctorate), Doctor of Philosophy (PhD), Griffith Law School, Arts, Education and Law, A significant number of Queenslanders reside in community titles schemes, and this figure is increasing annually as a result of population growth, changes in planning policies and economic opportunities. Many buildings constructed since the introduction of community titles legislation in the 1960s are now reaching or have exceeded their economic lifespan. Despite this, termination and redevelopment of schemes has received little attention until recently. Section 78(1) of the Body Corporate and Community Management Act 1997 (Qld) requires the passage of a resolution without dissent – unanimous approval by lot owners – to terminate a scheme, a necessary prerequisite to redevelopment of the scheme land. The requirement for unanimity prevents the termination of a scheme where a single dissenting owner exists. This inability to overcome what may be a single owner’s dissent, when the vast majority of other owners support the termination, is problematic. This is particularly the case in circumstances where a dissenting owner is engaging in strategic holdout behaviour with a view to extracting the best financial and non-financial terms for a sale. Self-interested holdout behaviour, together with the economic and social impact discontinuation of a redevelopment proposal may have on the wider community, is a justification for reforming the termination provisions of the Body Corporate and Community Management Act to better balance the rights and interests of stakeholders.

The prevention of fraudulent phoenix activity is an increasing issue for the Australian Government and the loss of taxation revenue that results from these arrangments can be significant. For this reason, the Australian Taxation Office (ATO) has played a major role in the development of anti-phoenix regulation and, in particular, the 2012 amendments to the director penalty regime seemed largely aimed at that issue. Typically however, the ATO will have two competing roles in the context of phoenix arrangements, being the primary collector of Australian taxation revenue and also a major creditor in the resulting corporate insolvency. Therefore, two key questions arise – how pervasive should the ATO’s collection powers be and to what extent should they be used to control fraudulent phoenix activity if the ATO is competing for funds against other creditors in the limited pool available. This article argues that there are several competing policy imperatives relevant to controlling fraudulent phoenix activity, and that legislative responses should consider the ATO’s role as both creditor in insolvency and collector of taxation revenue. Furthermore, the roles of the ATO and ASIC in relation to combatting phoenix activity need to be clarified. This article suggests that a framework based on decentred regulation might provide a better approach.

On 21 May 2015, the Productivity Commission released its draft report on the Inquiry into Business Set-up, Transfer and Closure (“Draft Report”) for feedback and consultation. The overall brief given to the Commission by Treasurer Hockey was to “conduct a broad ranging investigation into barriers to business entries and exits and how or where it might be efficiency-enhancing to reduce such barriers.” This included a specific examination of the personal and corporate insolvency regimes in relation to business exits. In this context, the Commission has considered the impact receivership has on corporate rescue during voluntary administration. Specifically, Recommendation 15.6 proposes that the duties of receivers to obtain best prices under s 420A of the Corporations Act 2001(Cth) should be subject to an additional duty “not to cause unnecessary harm to the interests of creditors as a whole, including putting the continuation of the company, or the preservation of the company as an ongoing concern for sale purposes, at risk”. Recommendation 15.6 also proposes that any proposed course of action by the receiver, particularly those involving the sale of assets, that are outside the course of the debtor’s normal business be subject to a simple majority vote of all creditors. The receiver may waive the vote if there would be no funds available for unsecured creditors after payment to the secured creditor has been made. It was further proposed that secured creditors would retain the right to appoint a receiver, and that the appointment should only be overturned if the court determines that the receiver is not acting in accordance with his or her duties.