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SME Debt Restructuring Legislation Passed

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

The Corporations Amendment (Corporate Insolvency Reforms) Bill 2020 has been passed in the Senate as of yesterday. The legislation will take effect from 1 January 2021.

The centrepiece of the legislation is the introduction of a new restructuring mechanism for SME’s, called ‘Debt Restructuring’. The process allows insolvent SME’s to put forward a proposal to creditors to resolve unsecured debts and allow the company to continue trading. The process is similar to Part IX debt agreements available to insolvent individuals under the bankruptcy legislation.

Other amendments included in the legislation are:

  1. A temporary safe harbour period for directors’ liability for insolvent trading whilst they are attempting to appoint an external administrator – this operates from 1 January 2021 and ends on 31 March 2021.
  2. A ‘Simplified Liquidation’ regime for small businesses, which is designed to reduce the time and cost involved with liquidating a corporate small business.
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Debt Restructuring legislation proposed for SMEs

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

The Treasury has today announced its Draft Bill designed to create a new, affordable restructuring mechanism for distressed small to medium businesses. The legislation seeks to resolve problems SMEs face in affording the costs of expensive Voluntary Administration processes. The Australian Government’s “Debt Restructuring” solution is a new process similar to a Part IX debt agreement available to insolvent individuals under bankruptcy legislation, as well as Chapter 11 arrangements available to companies in the US.

The Debt Restructuring process allows company directors to retain control of the company while putting a proposal to creditors for consideration, provided they meet the “eligibility criteria”, to be prescribed in regulations. Notably, the company’s total liabilities must be limited to a certain size in order to meet the eligibility criteria (as with Part IX debt agreements).

Whilst it is not a new proposal (ARITA has been advocating for such a mechanism since 2014), it has been picked up by the Government amidst the COVID-19 economic crisis in the hope of limiting fallout as a result of collapsing businesses once the faucet of stimulus is turned off and other temporary relief measures come to end, which is currently scheduled for the end of the year. As such, the new legislation will be effective from 1 January 2021.
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Privacy Law Update: A $1.7 Million Obligation

New laws have come into effect on 12 March 2014. The changes provide a new set of rules for businesses and organisations concerning the maintenance and recording of an individual’s personal information. Any businesses that do not meet the requirements of the act may face fines of up to $1.7 million for corporations or $340,000 for individuals.

The new laws define the ways in which the privacy of an individual must be handled.

Some notable changes include:

  • focus on a person’s ability to access and change their personal information;
  • quality and accuracy of information collected;
  • use of information collected; and
  • disclosure of information collected.

Notably, there is an exemption that applies for some business operators which meet certain requirements. Contact us to find out more about the exemptions.

For companies that provide credit or deferred payments, a second set of rules relates to credit information obligations and the information that must be provided for credit reporting purposes.
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