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Corporate restructuring

Our clients benefit from the expertise of our dispute resolution and litigation, corporate and commercial, finance, workplace relations, intellectual property and real estate lawyers, who work collaboratively to deliver commercial and legal solutions on all aspects of corporate restructuring.

Corporate restructuring

When confronted with financial or operational complications, we work closely with our clients to diagnose issues early and develop innovative and commercial solutions.

Expertise

We advise clients on any recommended changes to a company’s financial, ownership or operational structure and assist in strategic engagement with third parties. 

We act for a range of stakeholders, including insolvency practitioners, creditors, debtors, investors and company directors, and can act against banks without conflict. We have significant experience representing clients in State Supreme Court and Federal Court proceedings. 

Experience

Asset sales

We regularly assist clients seeking to divest assets to improve the performance of their portfolio, raise equity or increase capital, or as a result of a company’s de-merger or arising from the appointment of a liquidator, receiver or administrator.

Recent experience

  • advising liquidators of a resources company in relation to realisation of assets of the company, including acting on behalf of those liquidators in Supreme Court of Queensland proceedings arising out of the liquidation 
  • providing strategic advice to a public sector fund to enhance the client’s governance rights, transparency and liquidity in respect of a number of private equity and infrastructure assets managed by QIC 
  • acting for a state owned corporation in relation to the disposal of certain assets including advising directors on their duties in a sale environment
  • acting for creditors in various administrations where the creditor is seeking to buy assets or intellectual property out of the administration or in asserting rights over assets. 

Brand and intellectual property protection

Our Intellectual Property team works closely with a diverse client base across a wide range of sectors, including fashion, food and beverage, cosmetics, retail, and information technology. The team has extensive experience in intellectual property protection, enforcement, due diligence, commercialisation and restructuring including trade marks, copyright, designs, celebrity endorsements, software licensing, patent strategies.

Recent experience

  • carrying out due diligence on owned and licensed intellectual property before an acquisition of a business
  • negotiating the joint venture and protection of IP rights with a large US television network
  • advising a large drinks manufacturer on the partial-assignment of its brands as part of the sale of its business
  • drafting and negotiating brand co-existing agreements between entities post-acquisition
  • providing trade mark advice to businesses purchasing and selling brands, including trade mark searches and protection strategy
  • appearing before the Supreme Court in a breach of confidence matter involving the sale of an accountancy business.

Capital raising including share issues

Our national corporate and commercial team advises clients on a range of equity capital markets transactions, including seed capital raising transactions for start-up companies, initial public offerings, as well as secondary equity capital raisings such as share purchase plans and rights issues. 

As companies move to address recent developments in the rapidly evolving and increasingly prominent area of Australian corporate governance, we work closely with our clients and their other professional advisers to develop funding strategies which are appropriate in the context of enhanced regulatory scrutiny, and increasing shareholder activism. 

Leveraging our expertise, we assist clients in securing capital to support their execution of business objectives, organic and acquisitive growth strategies, and funding requirements for major transactions. 

We also assist clients with their capital management strategies by advising on dividends, dividend reinvestment plans, returns of capital, capital reductions, share buyback programs and share sale facilities. 

Recent experience

  • advising a private investor acquire a majority shareholding in ASX listed Oldfields Holdings Limited, by way of a private placement which required shareholder approval
  • advising an ASX-listed company on establishing a recapitalisation strategy, and advising on the staged implementation of the recapitalisation program, which included an equity fundraising through a placement to sophisticated and institutional investors and a follow on share purchase plan offered to existing retail shareholders, in conjunction with the conversion of existing debt instruments to equity
  • advising a start-up company on a seed capital raising round through the issue of preference shares to sophisticated investors
  • advising a public unlisted fintech company on a pro-rata entitlements offer with a shortfall placement component
  • advising ASX-listed companies generally on the recent waivers granted by ASX in connection with capital raising under the supersized placement capacity.

Contract assignment, novation and renegotiation

We advise clients undertaking a corporate restructure on the most effective way to manage existing contracts, which may include the variation or renegotiation of contracts, the transfer of rights by way of assignment or the transfer of rights and obligations by way of a novation. Such advice often requires negotiation with third parties to attain agreement.

Recent experience

  • acting for fitness franchise business system in connection with restructure of operating entities, including novation and assignment of franchise agreements and transfer of intellectual property and other assets
  • acting for online fashion retailer in connection with offshore licensing and distribution models, including dealing with changes to supply chain and distribution matters, and intellectual property licensing
  • acting for quick serve restaurant franchise business system in connection with restructure of holding and trading entities, including novation and assignment of supply and franchise agreements, transfer of assets, employees and liabilities
  • advising a listed hotel group entity in its acquisition and restructuring transactions which include a number of service, supply and other contracts that require assignment, novation and renegotiation 
  • advising developers and owners on the assignment of existing service providers (usually architects) from owner to Project Delivery entity requiring clauses in the head contract to facilitate novation, and appropriate documentation of deeds of novation
  • advising Government and State Owned Corporations and others on extending, varying or otherwise documenting clarifications relating to existing agreements.

Corporate restructuring

Our experience advising clients on corporate restructures ranges from joint ventures, mergers and acquisitions and divestments and de-mergers, to complex restructures involving takeovers, buy-outs and roll-ups of businesses.

Recent experience

  • advising Illinois Tool Works, Inc, a US listed manufacturer, with numerous acquisitions and divestments including transactions involving complicated restructures 
  • acting in the reorganisation of a major corporate feed lotting enterprise at a transaction value in excess of $50 million 
  • advising the purchaser on the acquisition of the distressed vehicle rental business of Atlas Group 
  • advising on the establishment, operation and liquidation of foreign-invested enterprises, and mergers and acquisitions of China-based enterprises, including the establishment of a Sino-foreign joint venture by a leading US specialty chemicals company, the establishment of a Sino-foreign joint venture and asset acquisition by the world’s largest chain manufacturer, and a China cross-jurisdictional merger by a leading Indian IT consulting company.

Deeds of Company Arrangement

Deeds of Company Arrangements (DOCA) are a flexible restructuring solution for companies experiencing temporary liquidity issues to recapitalise the business for the benefit of shareholders whilst retaining some value for creditors. We advise companies in distress, directors, financiers and insolvency practitioners about the prospect of restructuring by way of a DOCA, preparing and negotiating DOCA proposals, drafting deeds, challenging or defending DOCAs in court proceedings and administering deeds.

Recent experience

  • advising an industry superannuation fund, in a dispute with financiers to a SPV (following the insolvency of the fund’s JV partner), to restructure loan facilities in excess of $40 million and regulate the fund’s rights under a DOCA
  • acting for company directors of an insolvent vocational education broking business to propose and negotiate a DOCA with the administrators and drafting DOCA documents
  • advising directors and shareholders on restructuring options pre-insolvency and implementing a pre-pack DOCA arrangement.

Insolvency including safe harbour guidance

Our insolvency team regularly acts for insolvency practitioners, directors and creditors where a formal insolvency appointment cannot be avoided. Having been involved in some of the most complex corporate insolvencies in Australia, our team has the capability and insight to assist insolvency practitioners with asset realisations, investigations and liquidator examinations, applications for court directions, insolvency trading and voidable transaction claims and other insolvency litigation. 

Our experience in acting for insolvency practitioners means we are also well equipped to advise directors and creditors in defending claims and proceedings brought by liquidators or other third parties. 

We also have a thorough understanding of the safe harbour regime and the temporary changes to insolvency laws introduced by the Commonwealth Government in response to COVID-19.

We have advised and guided clients through high profile insolvency matters including Acquire Learning, Gunns Group, Timbercorp, Willmott, Pluton Mining, Legend Mining, Dick Smith, Napoleon Perdis, Roger David, Oliver Brown, Reed Constructions, Koko Black, Payless Shoes, M Webster Holdings Pty Ltd (trading as David Lawrence and Marcs) and Kobe Jones restaurants, as well as numerous smaller or less highly profiled insolvencies and personal bankruptcies.

Recent experience

  • defended Pitcher Partners, as auditor, in multi-party proceedings arising out of the liquidation of Australian Property Custodian Holdings Ltd (in liquidation) which included allegations of non-disclosure, breach of director duties and breaches of trust
  • acted for the provisional liquidator of Lifewealth8, an international pyramid scheme, with debts in excess of $20 million, in respect of Supreme Court proceedings seeking to terminate his appointment
  • conducted voidable transaction proceedings on behalf of the liquidator of Legend against companies related to Joseph Gutnick 
  • advising a liquidator in relation to the issues arising in the liquidation of a vocational education training (VET) company
  • acted for Careers Australia Group, a sales and marketing company, in Federal Court of Australia proceedings, defending a preference claim in excess of $1 million brought by the company’s liquidators
  • acting for Lending Syndicates and trustees in respect of the administration and ultimate liquidation of a group of listed mining entities. The matters included the implementation of creditors’ trust centred on a debt for equity swap, aggravated shareholder meetings, Takeovers Panel involvement and the ultimate re-listing of the company.

Property and leasing issues

Relying on their expertise and knowledge of the property industry, our Property & Real Estate team provides commercial advice on the property aspects of corporate restructures. Our experience includes acting and advising on development structuring and finance, due diligence, acquisition and property disposals. We also manage leasing disputes that arise as a result of a company becoming insolvent.

Recent experience

  • acting on behalf of a liquidator and secured mortgagees in Supreme Court proceedings brought to enforce leasehold interests in retirement village units
  • acting for Brookfield Asset Management on the proposed takeover of Healthscope. Responsibilities included co-ordinating due diligence of core property assets and contract negotiation
  • advising a local council in a dispute with a former licensee/lessee over land at Cessnock Airport regarding a dispute involving insolvency issues concerning the ability of one party to a long-term contract to terminate it following deregistration of the other party
  • acting for a major landlord creditor in the administration of the Oroton Group, including complex negotiations with administrators and the drafting of “umbrella” transactional documents, followed by implementation of new leasing arrangements
  • advising Government and several major landlords on COVID-19 rent deferral and waiver laws, including on strategy, negotiations, drafting agreements and assisting with disputes over construing legislation
  • advising Transport for New South Wales as landlord under a long term lease at Manly Bathers’ Pavilion where the tenant became insolvent, including renegotiating the lease terms to enable a successful tender process
  • acting on behalf of a property trust fund in relation to recovery of monies outstanding under retail shop leases, including issuing letters of demand and notices to remedy breaches.

Refinancing

We provide tailored advice to our clients on a range of refinancing options to replace or restructure existing debts, including restructuring of existing loans and debt facilities, debt-equity swaps and share transfers.

Recent experience

  • acted for Epuron Solar in the $22.2 million refinancing of the secured debt facility previously provided by the Clean Energy Finance Corporation for Epuron’s portfolio of three operating solar farms in the Northern Territory. One of the solar farms, TKLN Solar, is located at Kalkarindji and supplies essential power to three of Australia’s most remote Aboriginal townships
  • acting for Westbourne Capital and certain of its clients and managed funds in providing debt financing to Superstrada Pedemontana Veneta S.p.A. for the construction of the Pedemontana-Veneta toll road project in Italy
  • acted for QMS Media in its successful debt capital markets $70 million senior unsecured notes issue. QMS Media is an ASX listed company operating in the outdoor media sector in Australia, New Zealand and Indonesia
  • acted for DDH1 Drilling, a mining services company and investee of U.S. investment firm, Oaktree Capital, in the syndicated debt financing for its acquisition of Strike Drilling in Western Australia
  • advised Australian institutional investors in relation to the €250 million financing for the bid by an international consortium to acquire 80% of Meerwind Wind Farm, a major German offshore wind project.

Stamp duty relief

We have expertise advising clients in relation to transactional taxes including transfer duty in each Australian jurisdiction. Our experience includes advising in relation to landholder duty, transfer of business assets, trust acquisitions and relevant exemptions/concessions including corporate reconstruction relief and corporate consolidation relief for transactions between related parties. 

Recent experience

  • advising on transfer duty and landholder duty implications of entity’s exit from unincorporated mining joint venture
  • providing strategic advice to large propriety company in relation to its eligibility to claim corporate reconstruction exemptions/concessions in each Australian jurisdiction where ultimate parent company in the USA restructured its Australian subsidiaries to simplify overall structure
  • advising trustees of trusts with Queensland business assets and landholdings in relation to duty implications of restructures involving changes of trustees, declarations of new trusts, trust acquisitions and surrenders 
  • advising large landholders in relation to transfer duty consequences of related party transactions including in relation to exempt acquisitions under landholder duty provisions 
  • advising of aggregation for duty and land tax in relation to related party transactions and asset ownership 
  • preparing private ruling requests for corporate reconstruction and consolidation transactions on behalf of clients in Queensland, New South Wales, Victoria and Western Australia.

Workplace relations, including award and enterprise agreement issues

Our Workplace Relations & Safety team advises a range of stakeholders on employment and industrial relations aspects of commercial and corporate transactions, including restructures, mergers and acquisitions, administrations, and sales/purchases of businesses. Our advice provides strategies to minimise legal exposure resulting from workplace change, including compliance with consultation and dispute resolution requirements, redundancy, retrenchment and redeployment, and outsourcing/insourcing.

Recent experience

  • advising Clean Energy Finance Corporation on a significant restructure including advice on compliance with Enterprise Agreement consultation provisions and worker entitlements 
  • advising the Victorian Arts Centre Trust on strategies to resolve employee disputes and grievances arising out of restructuring and change initiatives
  • advising vendors in respect of employment and industrial issues arising from the divestiture of businesses, including a $100m services business, $45m division of a drilling business and an Australian division of a Canadian media business
  • advising on employment issues arising from the purchase of a manufacturing business for a US business, a broking business for a US business and a large farming operation in South Australia
  • advising in respect of the employment aspects relating the restructure of a leading national material handling business.

Recent Posts

25 September 2020 - Knowledge

Sweeping changes to insolvency laws proposed

#Corporate restructuring

Wide-ranging reforms to Australia’s insolvency regime will commence on 1 January 2021. We outline some of the key features under the new scheme and regulatory requirements for insolvency practitioners.

09 September 2020 - Knowledge

Practical tips for directors – how to manage and minimise risks at a board level

#Corporate & Commercial Law, #Corporate restructuring

For anyone who is a director or considering an appointment, it is worth refreshing your understanding of exactly what "directors and officers" are responsible for. We provide an overview of the duties of directors and some practical steps directors can take to ensure compliance.

07 September 2020 - Knowledge

Treasury confirms insolvency safeguards extended

#Corporate restructuring, #Dispute Resolution & Litigation

Insolvency and bankruptcy protections slated to conclude in September have been extended until 31 December 2020.

25 August 2020 - Knowledge

‘From the company’ – can a third party payment be a preference?

#Corporate restructuring, #Dispute Resolution & Litigation

A recent Victorian Court of Appeal decision clarifies when payments from a third party to a creditor can be considered a payment ‘from the company’ and thereby potentially voidable as a preference.

12 August 2020 - Knowledge

Changes to the regulation of third party litigation funding – insolvency practitioners should take note

#Corporate restructuring, #Dispute Resolution & Litigation

Funding schemes for corporate insolvencies could be subject to increased regulation if they fail to fall within an exempted category.

11 August 2020 - Knowledge

Directors duties still relevant: A friendly reminder in the age of COVID-19

#Corporate & Commercial Law, #Corporate restructuring, #COVID-19

As the COVID-19 pandemic continues to have far-reaching consequences, company directors must continue to ensure they understand the duties they owe to their companies, shareholders and creditors.

22 July 2020 - Knowledge

Landlords win the right to claim rent as an expense of administration

#Corporate restructuring, #Dispute Resolution & Litigation, #Property & Real Estate

The Federal Court has provided important guidance for landlords on the operation of the priority regime in s556(1)(a) of the Corporations Act 2001 (Cth).

03 June 2020 - Knowledge

Navigating voluntary administration: Eight key considerations for landlords of insolvent tenants

#Corporate restructuring, #Dispute Resolution & Litigation, #Property & Real Estate

We pinpoint eight key considerations landlords of insolvent tenants should be mindful of when dealing with the administration process, and outline key action items from day one.

26 May 2020 - Knowledge

Will longer landlord lockouts become the new norm?

#Corporate restructuring, #Dispute Resolution & Litigation, #Property & Real Estate, #COVID-19

In two recent decisions, the Federal Court has allowed administrators to continue to occupy leased premises rent-free for an extra month. Should landlords be worried that this trend will continue? Whilst the decisions were undoubtedly made in the extraordinary circumstances of COVID-19, it is not difficult to see a precedent being established with similar orders being made more frequently in the future.

01 April 2020 - Knowledge

Trading through the corona crisis: Practical steps to help protect businesses

#Corporate restructuring, #Dispute Resolution & Litigation, #COVID-19

The COVID-19 outbreak is wreaking havoc on businesses and exposing a number of internal issues. We address critical business housekeeping matters that may protect your business under current circumstances.

23 March 2020 - Knowledge

COVID-19 response: Changes to insolvency laws

#Corporate restructuring, #Dispute Resolution & Litigation, #COVID-19

The increasing spread of COVID-19, and now the unprecedented measures being taken by governments to slow that spread, is having and will continue to have a significant impact on economies around the globe, including Australia. As the situation has not been seen before, it is difficult for businesses and individuals to plan ways to limit the impact on their ability to continue trading – and pay their debts. In recognition of the unique challenges facing businesses today, the Australian Government has responded by acting to relax laws relating to insolvency.

06 November 2019 - Knowledge

Insolvent pharmacy: New powers for external administrators

#Corporate restructuring, #Dispute Resolution & Litigation

Recent amendments brought about by the National Health Amendment (Pharmaceutical Benefits) Bill 2019 (Cth) allow for the supply of pharmaceutical benefits by approved pharmacies under the Pharmaceutical Benefits Scheme (PBS) to continue following external administration or bankruptcy.