Australia: Federal Court of Australia declines to determine section 513C day in application for recognition of cross-border insolvency under UNCITRAL Model Law

Last Updated: 22 April 2015
Article by Georgina King

On 16 April 2015, the Federal Court handed down its decision in the most recent judgment involving application for recognition in Australia of a foreign insolvency proceeding.

Application for recognition

The case, Wild (Foreign Representative) v Coin Co International PLC (Administrators Appointed); In the Matter of Coin Co International PLC (Administrators Appointed) [2015] FCA 354, concerned an application by administrators appointed in the United Kingdom (UK), for recognition of the UK administration in Australia, and ancillary orders to facilitate the conduct of the administration in Australia. The application was brought by the administrators under the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency (Model Law) and Cross-Border Insolvency Act 2008 (Cth) (Cross-Border Insolvency Act).

Since the enactment of the Cross-Border Insolvency Act in Australia, there have been a number of successful applications by foreign liquidators, administrators and bankruptcy trustees, including one in which the author of this article acted for the foreign liquidator, for recognition in Australia of foreign insolvency proceedings. The purpose of bringing such an application is to obtain orders from the court that enable foreign liquidators, administrators and bankruptcy trustees to carry out necessary actions within Australia as part of the reorganisation, administration and liquidation of a foreign corporation's or individual debtor's assets. There are a broad range of orders the court can make for the benefit of a foreign liquidator, administrator or bankruptcy trustee following recognition of a foreign proceeding in Australia under the legislation.

In the Wild v Coin Co case the administrators were successful in obtaining from the Court orders that:

  • the UK administration be recognised as a foreign main proceeding for the purposes of the Cross-Border Insolvency Act and Model Law;
  • the administration and realisation of the defendant's assets in Australia be entrusted to Australian administrators who had been named as part of the application; and
  • the foreign administrators' costs of the application be paid out of the proceeds of the sale of the property of the defendant located in Australia.

Section 513C issue

In the proceedings, the foreign administrators also sought an order that for the purposes of section 513C of the Corporations Act, the administration of the defendant's estate in Australia be taken to have begun on either:

  • the date on which the foreign administrators were appointed over the defendant in the UK; or
  • the date on which the Federal Court made orders in the present proceedings concerning the application for recognition under the Model Law.

Although the foreign administrators sought these two orders in the alternative, it was their contention that the administration should be taken to have begun on the date of their appointment as administrators in the UK proceedings. This order was opposed by one of the defendant company's Australian creditors who argued that the administration of the company's estate in Australia should be taken to have begun on the date on which the Federal Court made its orders in the present proceedings. Another Australian creditor had argued in correspondence prior to the hearing that the Court did not have the power to make an order on this issue and that such an order is unnecessary because the Corporations Act prescribes when an administration is deemed to have commenced. The creditor also argued that such an order should not be made in the present proceedings because it could unfairly prejudice the company's Australian secured creditors when compared with the positon of its foreign secured creditors.

The obvious significance of the date on which the administration is taken to have begun for the purposes of section 513C of the Corporations Act, is the connection between that day and the relation back day and date on which a winding up is taken to have begun, for the purposes of any voidable transaction claims subsequently brought under the Corporations Act. If a court were to determine that the administration should be taken to have begun as late as the date of the Court's orders in the Australian Federal Court proceedings, it would dramatically alter the applicable periods during which any potentially voidable transactions may have taken place.

The Federal Court declined to make a finding on the issue in the present proceedings on the basis that it would need to be determined in any proceedings brought regarding a specific voidable transaction claim, particularly given that any parties such claims were brought against would have an interest in being heard on the issue.

In respect of this issue, the Cross-Border Insolvency Act provides that the voidable transaction provisions in the Corporations Act and Bankruptcy Act 1966 (Cth) (Bankruptcy Act) apply, "with appropriate changes", in relation to an action for the purposes of a foreign proceeding in the same way as they would apply if the action was for the purposes of a proceeding under the Corporations Act or Bankruptcy Act.

It would be a strange result if a court were to find that the relation back day or day a winding up is taken to have begun should be altered in the way contended by the creditor in the Wild v Coin Co case. Nevertheless, this is an issue that could potentially be argued by a defendant to a voidable transaction claim in foreign proceedings recognised under the Model Law in due course. Significantly, the case does demonstrate that there will be little utility in seeking an order on this issue at the stage of seeking recognition of a foreign insolvency proceeding under the Model Law, even where a creditor has raised an argument about it prior to the proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

For further information contact:

Georgina King, Principal
(02) 8226 8772

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.