Thesis abstract:

«p»The moratoria and stay are almost universally considered a – and, by some, the – central element of an insolvency system. The moratoria and stay prevent a grab of an insolvent company’s assets, promote adherence to an insolvency system’s equality principle and, by holding the enterprise together, enable a going concern premium to be realised in appropriate circumstances. However, this socialised and regulated method of dealing with creditor claims in company systemic financial distress intrudes on cherished contract and property rights. Australia, following a British legal tradition and a tradition of dominant bank lending, allows extensive exceptions to the stay for secured and property-owning creditors. It will be argued that this tradition does not sit well as a normative principle. Instead, the robustness of moratoria and stays as they apply to insolvent Australian companies require augmentation if best practice is to be attained. Far from being a situation that offends, it is instead one that is justified, both at a level of principle and as an enabler of what should be improved outcomes.«/p»