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International Corporate Rescue Clayton Utz Special Issue 1 Long Tail Personal Injury Liabilities: The Australian Response Karen O’Flynn 5 Solvent Schemes of Arrangement in the Australian Reinsurance Industry Nicholas Mavrakis and Peter Mann 10 High Court of Australia Holds Failed Airline Accountable to Global Airline Clearing House Paul James and Polat Siva 14 Litigation Funding in Australia Karen O’Flynn 22 Creditors’ Claims against Third Parties Karen O’Flynn 26 Biting the Hand that Feeds You Karen O’Flynn 31 Creditors versus Shareholders: Primus Inter Pares? David Cowling 38 Insolvent Unit Trusts in Australia Jennifer Ball 42 An Administrator’s Power to Compulsorily Transfer Shares Cameron Belyea Editor-in-Chief Publishers Mark Fennessy, Proskauer Rose LLP, London Chase Cambria Company (Publishing) Ltd Publisher 4 Winifred Close Sasha Radoja, Travers Smith LLP, London Barnet, Arkley Editorial Board Hertfordshire EN5 3LR Emanuella Agostinelli, Curtis, Mallet-Prevost, Colt & Mosle United Kingdom LLP, Milan Scott Atkins, Norton Rose Fulbright, Sydney Annual Subscriptions James Bennett, KPMG, London Prof. Ashley Braganza, Brunel University London, Uxbridge A hardcopy subscription is EUR 730 / USD 890 / GBP 520; Dan Butters, Deloitte, London online: EUR 730 / USD 890 / GBP 520; and hardcopy + online: Geoff Carton-Kelly, FRP Advisory, London EUR 840 / USD 1045 / GBP 625. Rates per additional hardcopy or online user are: EUR 165 / USD 220 / GBP 145. Gillian Carty, Shepherd and Wedderburn, Edinburgh Charlotte Cooke, South Square, London VAT is charged on online and hardcopy + online subscriptions. Sandie Corbett, Walkers, British Virgin Islands Hardcopy-only is zero-rated for VAT purposes. For package Katharina Crinson, Freshfields Bruckhaus Deringer, London subscriptions, VAT is charged on the entire package. Hon. Robert D. Drain, United States Bankruptcy Court, For enquiries, please contact our sales department at: Southern District of New York + 44 (0) 114 255 9040 or [email protected] Matthew Kersey, Russell McVeagh, Auckland Prof. Ioannis Kokkoris, Queen Mary, University of London Special Issues Prof. John Lowry, University College London, London Neil Lupton, Walkers, Cayman Islands Price for individual Special Issues for subscribers: EUR 125 / USD 175 / GBP 105; for non-subscribers: EUR 165 / USD 225 / Lee Manning, Deloitte, London GBP 135. Online access to all Special Issues for subscribers: Ian McDonald, Mayer Brown International LLP, London EUR 375 / USD 535 / GBP 315; for non-subscribers: EUR 495 / Nigel Meeson QC, Conyers Dill Pearson, Hong Kong USD 695 / GBP 420. Online subscription plus access to all Prof. Riz Mokal, South Square, London Special Issues: EUR 995 / USD 1250 / GBP 740. Hardcopy + Mathew Newman, Ogier, Guernsey online subscription plus access to all Special Issues: EUR 1150 / Karen O’Flynn, Clayton Utz, Sydney USD 1450 / GBP 875. Prof. Rodrigo Olivares-Caminal, Queen Mary, University of London Advertisements Christian Pilkington, White & Case LLP, London Susan Prevezer QC, Quinn Emanuel Urquhart Oliver & For advertisements please contact: Hedges LLP, London [email protected] Sandy Purcell, Houlihan Lokey Howard & Zukin, Chicago Prof. Arad Reisberg, Brunel University, London Copyright Jeremy Richmond, Quadrant Chambers, London Daniel Schwarzmann, PricewaterhouseCoopers, London ISSN: 1572-4638 The Hon. Mr Justice Richard Snowden, Royal Courts of Justice, London © 2019 Chase Cambria Company (Publishing) Ltd Anker Sørensen, De Gaulle Fleurance & Associés, Paris Permissions Kathleen Stephansen, New York Angela Swarbrick, Ernst & Young, London All rights reserved. No part of this publication may be Dr Artur Swierczok, CMS Hasche Sigle, Frankfurt reproduced, stored in a retrieval system, or transmitted in any Stephen Taylor, Isonomy Limited, London form or by any means, mechanical, photocopying, recording Richard Tett, Freshfields Bruckhaus Deringer, London or otherwise, without prior permission of the publishers. William Trower QC, South Square, London Mahesh Uttamchandani, The World Bank, Washington, DC Permission to photocopy must be obtained from the copyright Robert van Galen, NautaDutilh, Amsterdam owner. Please apply to: Miguel Virgós, Uría & Menéndez, Madrid E-mail: [email protected] Prof. em. Bob Wessels, University of Leiden, Leiden, the Website: www.chasecambria.com Netherlands Maja Zerjal, Proskauer Rose, New York Disclaimer Dr Haizheng Zhang, Beijing Foreign Studies University, Beijing US Corner The information and opinions provided on the contents of the journal was prepared by the author/s and not necessarily Editor: Maja Zerjal, Proskauer, New York represent those of the members of the Editorial Board or Economists’ Outlook of Chase Cambria Company (Publishing) Ltd. Any error or Editors: Prof. Ashley Braganza, Brunel University London, omission is exclusively attributable to the author/s. The content Uxbridge provided is for general purposes only and should neither be Prof. Ioannis Kokkoris, Queen Mary, University of London considered legal, financial and/or economic advice or opinion Kathleen Stephansen, Huawei Technologies U.S.A., New York nor an offer to sell, or a solicitation of an offer to buy the Mahesh Uttamchandani, The World Bank, Washington, DC securities or instruments mentioned or described herein. Neither the Editorial Board nor Chase Cambria Company (Publishing) Case Review Section Ltd are responsible for investment decisions made on the basis of Editors: Charlotte Cooke, South Square, London any such published information. The Editorial Board and Chase Prof. John Lowry, University College London, London Cambria Company (Publishing) Ltd specifically disclaims any Dr Arad Reisberg, Brunel University, London liability as to information contained in the journal. ARTICLE Long Tail Personal Injury Liabilities: The Australian Response Karen O’Flynn, Partner, Litigation & Dispute Resolution, Clayton Utz, Sydney, Australia Asbestos and other dust diseases are not a new issue. 60 The distinction is vital because whilst contingent Nevertheless, events over the last few years have cata- or prospective creditors are taken into account in pulted them to the forefront of community and political assessing solvency, possible future claims that might debate in Australia. crystallise are not. The great probabilities are that if Interestingly, a combination of factors has resulted [the group companies] were to go into provisional in this personal injury issue being increasingly viewed liquidation now, then the only claims that would be through the prism of company law. This has resulted in paid by the liquidator would be those which have some radical company law reform proposals. crystallised and, after paying the doubtless heavy ex- penses of liquidation, there would be a distribution of surplus funds to the shareholder MRCF which would 1. Background be used for the purpose of the alleged charitable fund. The future creditors would get nothing and this may The James Hardie group was an Australian-domiciled very well be the case even if the claim matured the manufacturer of asbestos products. In 2001, long day after the liquidation commenced.’1 after it had ceased to manufacture asbestos products, it relocated to Holland (for tax reasons). It left behind Australia has a federal system of government. Respon- in Australia the group companies which had been sibility for workplace health and safety rests with State the manufacturers of asbestos products; those group legislatures, while the Federal legislature has authority companies were hived off from the rest of the group over corporate law (including corporate insolvency). and placed under the control of a standalone company The New South Wales State Government commis- under the terms of a trust. The purpose of this trust ar- sioned an inquiry into the James Hardie situation. That rangement was to use the assets of the former group committee released its report in September 2004. The companies to provide for the payment of claims for report recognised the legal position identified by the asbestos-related illnesses from Australians. Supreme Court and commented that: ‘unless some It subsequently emerged that the quantum of claims general reform is enacted that permits [corporate insol- would outweigh the funds available. The trustee ap- vency law] to deal with long tail liabilities, future cases plied to the NSW Supreme Court for directions as to the will arise that will have to be the subject of ad hoc leg- 2 appropriate course of action. In the course of dealing islative solution, if serious injustice is to be avoided’. with that application, the Court held that many persons injured through exposure to James Hardie’s asbestos products would have no standing as creditors should 2. The mass future claim proposal the former group companies be placed in liquidation: In October 2005, the Federal Government announced ‘58 On current authority, persons injured through its response to the issues identified by the NSW Supreme exposure to asbestos manufactured or supplied by Court and the inquiry report. It asked the Corporations [the group companies] do not have a completed and Markets Advisory Committee (CAMAC) to con- cause of action until damage is suffered and that sider and report on a detailed legislative proposal that usually involves manifestation of the disease … . the Government had prepared. Under that proposal, 59 This type of liability must be distinguished from companies, liquidators and voluntary administrators the case
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