One of the worst problems caused by the Insolvency Law Reform Act 2016 – the ability to remove an insolvency appointee without Court scrutiny – appears to have been partly addressed by changes to the Insolvency Practice Rules effective from 7 December 2018.
It will no longer be possible for related parties to buy debt cheaply and then vote the full face value to replace an external administrator. Instead, the related parties’ voting rights will be limited to the amount paid to acquire the debt.
This will be similar to the long standing position in personal insolvency – however in personal insolvency the restriction to the amount paid to acquire the debts applies to all debt sales, not just debt acquired by related parties.
Replacement by non- related creditors
There is still no Court scrutiny on liquidator replacement, so those unrelated creditors who work together to replace liquidators seen as too aggressive in pursuing preferences will not be affected by the changes.
Is ‘assignment’ broad enough?
The rules only apply to assignment of debt. In modern financial practice there are a range of ‘sub-participation’ and risk sharing arrangements which may achieve a similar outcome but perhaps be outside the scope of the rules as drafted.
Impact on debt traders
Some active debt traders will take equity positions as well as acquiring debt. In some cases that could mean that they have become a ‘related party,’ with the consequence that their voting rights will be very different under a scheme of arrangement (i.e. intact) compared to a deed of company arrangement (reduced).
Some market participants will recognise the differential treatments, and adjust their strategies to take advantage. The form of restructuring vehicle may become the next battlefield!
What’s next?
It’s pleasing to see an effort made to fix some of the damage done by the ILRA. Hopefully work is now underway to fix the other problems such as the impractical cash handling rules and the odd requirement for registered liquidators to have bankruptcy experience, to name a few.
Australian Loan Restructuring Issues 