JWS Consulting is a division of Johnson Winter & Slattery providing commercial consulting services.
Johnson Winter & Slattery is engaged by major businesses, investment funds and government agencies as legal counsel on important transactions and disputes throughout Australia and surrounding regions.
Our firm provides a diverse range of opportunities for talented, enthusiastic people to develop brilliant legal careers.
Our news and media coverage including major transaction announcements, practitioner appointments and team expansions.
We support a number of community initiatives and not for profit organisations across Australia through pro bono legal work and charitable donations.
We support a number of organisations through sponsorships.
On 12 September 2017, some of the most significant reforms of Australia’s corporate insolvency laws in recent years were passed by both Houses of the Australian Federal Parliament. These reforms will introduce:
The reform relating to ipso facto clauses set out in the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 (Cth) (Bill) will become the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) (new Act) when Royal Assent is received.
The Act is intended to provide breathing space for companies undertaking a formal restructure, and is a positive step towards improving a company’s negotiating position with its creditors in relation to restructuring of the company. However, the reform does not cover companies that enter into a DOCA, or companies undertaking an informal restructuring (outside of Parts 5.1, 5.2 or 5.3A of the Corporations Act) in reliance on the new safe harbour laws.
Only time will tell whether the reforms will have their intended effect of protecting asset values for the benefit of companies, employees and creditors, and more widely to promote a culture of entrepreneurship.
Ipso facto is a Latin phrase which translates to ‘by the fact itself’.
An ipso facto clause creates a contractual right that allows one party to terminate or modify the operation of a contract upon the occurrence of some specific event, even if the other party is in compliance with all of its obligations under the contract.
In the insolvency context, this means a party to a contract is able to terminate or modify a contract solely due to the other party’s financial position (including insolvency) or due to a formal insolvency appointment, such as the appointment of an administrator. Currently, enforcement of ipso facto clauses is possible as against companies despite the company continuing to perform its obligations under the contract.
The operation of ipso facto clauses has attracted criticism for reducing the scope for a successful restructure, preventing the sale of businesses as a going concern and reducing or eliminating returns in liquidation due to the destruction of value held in the company’s contractual arrangements.
This reform is aimed at enabling businesses to continue to trade and maintain their existing contractual arrangements in order to recover from an insolvency event.
The new Act will amend the Corporations Act 2001 (Cth) (Corporations Act) and the Payment Systems and Netting Act 1998 (Cth) to prevent the enforcement of certain rights against a company which is undertaking a formal restructure, when those rights are triggered by the company’s financial position or its entry into a formal restructure.
A formal restructure for the purpose of the new Act means:
Additional amendments proposed by the Senate on 11 September 2017 (to be included in the new Act) provide for:
These amendments are primarily intended to allow a quick regulatory response to contractual arrangements which may develop in an attempt to circumvent the stay.
Notwithstanding the stay, parties will still maintain the right to terminate or modify contracts for reasons unrelated to the company’s financial position, such as a breach involving non-payment or non-performance.
The amendments will apply to contractual rights in contracts made after the commencement of the relevant sections of the new Act – that is, ipso facto clauses in contracts entered into prior to commencement will remain enforceable.
There are a number of other specific circumstances set out in the Bill where the stay will not operate. One example is that the stay will not apply in relation to contracts made after the commencement of the formal restructure.
The amendments providing for the stay on enforcement of ipso facto clauses will commence on the later of 1 July 2018 or six months after Royal Assent, but may also commence at an earlier date as proclaimed by the Governor-General.
Rights that are subject to the stay will not be enforceable against a company:
The consequence of point (a) above means that there is no automatic extension of a stay upon the execution of a Deed of Company Arrangement (DOCA), because an administration ends when a DOCA is executed pursuant to section 435C of the Corporations Act. To continue to receive the benefit of the stay, administrators will need to apply to the Court for an extension of the stay while the DOCA remains in place.
Be the first to receive the latest articles, news and publications.
The operation of temporary COVID-19 relief measures for businesses in the hope of aiding distressed companies and preventing further economic breakdown will be extended until 31 December 2020.
With mounting pressure from the regulator and the burden of administrative costs, super funds are making the decision to merge more often than before; at least 28 have taken the step since 2014.
In its recent judgment involving the PAS Group of companies , the Federal Court held that rent payable by the PAS Group during an extension of the period in which an administrator had been excused...