Jason Harris teaches and researches in the areas of Corporate Law, Securities Law, Secured Transactions and Corporate Insolvency Law. Jason has previously taught at UNSW, the ANU and worked as a junior lawyer for the Australian Government Solicitor. Jason has served as a visiting scholar at the University of Western Ontario in Canada, the University of Leeds in England and as an adjunct professor for Widener University (Delaware, USA). Jason was the Insol International Scholar for the Asia Pacific Rim for 2010-2011. Jason is the leader of the Faculty's Corporate, Commercial and Tax research network.
Jason is an active researcher and has published over 70 articles, books and book chapters on these areas. Jason's research has been cited in the Supreme Courts of New South Wales, South Australia and Western Australia as well as by the Commonwealth Parliament and the Corporations and Markets Advisory Committee. His papers are regularly cited in academic works in Australia and internationally. Jason is a regular presenter at professional and academic conferences and seminars on Corporate Law, Commercial Law and Insolvency Law issues. Jason's research is focused on corporate debt restructuring and informal workouts, voluntary administration, the regulation of corporate groups, corporate governance and directors’ duties.
Many of Jason's academic papers can be downloaded from his SSRN author page:
You can follow Jason on Twitter: @corporatelawAU
Jason is a member of the following professional bodies:
- Insolvency and Reconstruction Law Committee of the Law Council of Australia (Business Law Section)
- Corporations Law Committee of the Law Council of Australia (Business Law Section)
- Insol International
- Australian Restructuring, Insolvency and Turnaround Association-academic member and member of the Terry Taylor Scholarship Committee
- Fellow of the Governance Institute of Australia and Chair of the Subject Advisory Committee (Applied Corporate Law) and Chair of the National Assessment Review Committee. Member of the NSW Professional Development Committee and National Education Committee
- Australian Corporate Law Teachers' Association-member of the National Executive
- Australasian Law Teachers Association
Can supervise: YES
- Corporate debt restructuring and workouts
- Corporate insolvency (particularly voluntary administration)
- Personal liability imposed on company directors
- Regulation of corporate groups and veil piercing
- Shareholder and creditor roles in corporate governance
- Personal Property Securities Act
- Comparative insolvency law
- Corporate Law
- Corporate Insolvency
- Finance Law
- Commercial Law
Harris, J & Murray, M 2016, Keay's Insolvency, 9th, Thomsonreuters, Sydney Australia.
Harris, J 2015, Company Law: Theories, Principles and Applications, 2nd, LexisNexis Butterworths, Sydney Australia.
Harris, J, Gronow, M & Anderson, H 2014, Insolvency Law: Commentary and Materials eBook, Thomsonreuters, Sydney Australia.
Insolvency Law: Commentary and Materials fills an important gap in student learning: exposure to the critical cases and materials that shape personal and corporate insolvency law.
This book has been released at a time when significant questions are being asked in the insolvency world. What should be the ongoing role of the corporate regulator, ASIC? Should personal and corporate insolvency be managed through an amalgamation of ASIC with its bankruptcy equivalent, AFSA? What is the role of the liquidator as the gatekeeper of corporate conduct? Should Australia adopt Chapter 11 bankruptcy from the United States? Insolvency Law: Commentary and Materials provides a foundational understanding of these issues.
Jason Harris is a senior lecturer in the UTS Faculty of Law and teaches and writes extensively in the area of insolvency, in particular in corporate restructuring. Michael Gronow of the Victorian Bar has both litigation and publication experience in insolvency law, and has for some years taught Insolvency Law to LLB and now JD students at the Melbourne Law School. Associate Professor Helen Anderson of the Melbourne Law School has taught Corporations Law for many years, and has researched and published widely in the area of creditor protection, including most recently, the position of employee creditors.
Murray, M. & Harris, J. 2014, Keay's Insolvency, 8th, Thomsonreuters, Sydney.
Plessis, JJD, Hargovan, A, Bagaric, M & Harris, J 2014, Principles of Contemporary Corporate Governance, 3rd, Cambridge University Press.
Principles of Contemporary Corporate Governance is an indispensable resource for academic researchers, practitioners and students studying corporate governance.
Harris, J. 2013, Corporations Law (LN Questions and Answers), 4th, Lexisnexis Butterworths, Sydney.
Company Law: Theories, Principles and Applications provides a principled framework to critically analyse and apply principles of modern Australian company law. The key aim of this text is to engage the reader and demonstrate corporate law in action rather than merely restating a series of rules and principles. The writer draws on a range of approaches including historical analysis and the use of practical examples to bring the principles of Australian company law to life. The reader is encouraged to critically assess the scope and limitations of the rules of law through detailed analysis of the core principles in their real world context. The text uses different theoretical perspectives to evaluate the main principles of company law which arms the reader with tools of analysis and facilitates reflective learning. The reader is challenged to consider the appropriateness of modern Australian company law and possible future reforms.
Harris, J. 2011, Corporations Law, 2nd, LexisNexis Butterworths, Sydney.
Harris, J. & Mirzai, N. 2011, Annotated Personal Property Securities Act 2009, 1st, CCH, Australia.
Juriansz, J., Chapple, S., Robinson, L.K., Harris, J. & Mirzai, N. 2011, Equity and Trusts, 1st, Palgrave Macmillan, Australia.
Murray, M. & Harris, J. 2011, Keay's Insolvency: Personal and corporate law and practice, 7th, Lawbook Co, Sydney.
Harris, J. 2010, Corporations Law: Questions and Answers, 3rd, LexisNexis Butterworths, Australia.
Baxt, R. & Harris, J. 2009, Corporations Legislation 2009, Thomson Lawbook Co.
Harris, J. 2008, LexisNexis Study Guide: Corporations Law, LexisNexis Butterworths, Australia.
Baxt, R. & Harris, J. 2007, Corporations Legislation July 2007, Lawbook Co.
New edition of the Annotated Corporations Act
McSpedden, A., Pincus, R.C. & Harris, J. 2003, Personal Injury Litigation New South Wales, LexisNexis Butterworths, Sydney Australia.
Update of principles of liability in negligence chapter in my co-authored loose leaf service on personal injury law.
Harris, J 2018, 'Putting the cart before the horse? The liability of company secretaries and general counsel for defective disclosure', Australian Journal of Corporate Law, vol. 33, no. 1, pp. 55-75.View/Download from: UTS OPUS
Harris, J 2017, 'Class Warfare In Debt Restructuring: Does Australia Need Cross-Class Cram Down For Creditors' Schemes Of Arrangement?', The University of Queensland law journal, vol. 36, no. 1, pp. 73-97.View/Download from: UTS OPUS
The corporate insolvency landscape is changing. While the numbers of formal
insolvency appointments have not increased dramatically since the Global Financial
Crisis,1 the dialogue surrounding financial distress and the methods to address it have
moved away from formal insolvency appointments to restructuring and turnaround
before financial distress becomes insolvency. 2 Insolvency proceedings, such as
receivership, liquidation and even voluntary administration (which has a stated purpose
of trying to save businesses)3 carry a stigma of failure,4 which makes trading on as a
business more difficult and reduces creditor confidence in the potential to save the
business through a formal restructuring.
Schemes of arrangement have been used to restructure companies for more than
160 years.5 A scheme may be used by creditors to address financial distress, and offers
numerous advantages over other formal mechanisms (such as liquidation and voluntary
administration) because it applies to secured creditors 6 and can be used to bind
dissenting minorities of both secured and unsecured creditors.7
The ability to bind minorities within a specific class of creditors or members is
sometimes referred to as a 'cram down'. A creditors' scheme of arrangement may be
proposed between a company and one or more classes of creditors. Where the scheme
targets multiple classes of creditors it must be approved by a majority of each class. If
one class of creditors dissents, then the scheme fails. The ability of a majority of
creditor classes to bind one or more dissenting classes is referred to as 'cross-class
cram down' and is the focus of this article.
Harris, J & Hargovan, A 2017, 'Still a sleepy hollow? Directors' liability and the business judgment rule', Australian Journal of Corporate Law, vol. 31, no. 3, pp. 319-343.View/Download from: UTS OPUS
The statutory business judgment rule was introduced in Australia in 2000 after a lengthy process of consultation and debate. The rule was aimed at alleviating fears that directors may have that their commercial decisions made in good faith and for the benefit of the company would be subject to second guessing by the courts through litigation alleging a breach of the duty of care and diligence. Since 2000 there have been only a few decisions that have discussed the rule, giving credence to the prediction that it would be a sleepy hollow rather than a safe harbour. Fifteen years on, the rule was recently successfully relied upon for the first time in ASIC v Mariner (2015) but in circumstances where a breach of duty of care was not proven. Significantly, the rule remains a hot topic for public debate with the AICD and Dr Robert Austin proposing amended business judgment rules. This article reflects on the past 15 years of the statutory business judgment rule and assesses the case for law reform advanced by the private sector.
Harris, J 2016, 'Reforming insolvent trading to encourage restructuring: safe harbour or sleepy hollows?', Journal of Banking and Finance: Law and Practice, vol. 27, no. 4, pp. 294-309.View/Download from: UTS OPUS
Harris, J 2016, 'Using voluntary administration to dilute minority shareholdings', Australian Restructuring Insolvency and Turnaround Association Journal, vol. 28, no. 1, pp. 22-27.View/Download from: UTS OPUS
The New Bounty case and using a DOCA to dilute minority shareholdings as part of a distressed M and A strategy.
The past 12 months has seen a number of important
cases on the Personal Property Securities Act 2009 (Cth)
(PPSA) handed down. These cases have covered diverse
issues including the composition security agreements,
the effect of retention of title clauses, concepts of
ordinary course of business and leasing and fixtures and
the PPSA. There have also been a number of cases that
have considered the vesting of PPSA security interests in
the grantor, both where no registration on the Personal
Property Securities Register (PPSR) has occurred prior
to the insolvency of the grantor or where there has been
late registration of the security interest before the
insolvency of the grantor.
This article reviews several of these important decisions
that will be of interest to finance and legal
Harris, J 2015, 'Restructuring nirvana? Chapter 11 bankruptcy and Australian insolvency reform.', Insolvency Law Bulletin, vol. 16, no. 3, pp. 42-46.
Harris, J & Green, G 2015, 'Total Control? The Bell Group decision and its impact forlenders and their advisers', Australian Insolvency Journal, vol. 27, no. 3, pp. 23-26.
Harris, J, Heffernan, J & Toohey, M 2015, 'Not-for-profit constitutions: Crossing the T's while hugging the trees', Governance Directions, vol. 67, no. 7, pp. 397-398.
The state of Australia's insolvency laws is currently a matter of considerable public debate, with the recent Senate Economics Committee report into the Australian Securities and Investments Commission and the Financial System Inquiry interim report both touching on insolvency law and insolvency practitioners. One issue that is often glossed over in public debates about the cost of insolvency administrations and returns to creditors is the fact that insolvency practitioners take on considerable personal liability for their actions during the administration. Voluntary administrators, in particular, have extensive personal liabilities for debts arising during the administration and often face hostile creditors who oppose their conduct of the company's affairs during the administration.
A recent decision of the Supreme Court of New South Wales has raised the issue of administrator liability for consideration. Specifically, the case has examined the broad range of potential liabilities that administrators may be subjected to when selling encumbered assets during the administration. The case, THC Holding Pty Ltd v CMA Recycling Pty Ltd,1 reinforces the need for all administrators to take care when disposing of property not owned by the company. The prospect of the owner of the goods seeking damages against the administrators for loss caused, in addition to injunctive relief under s 1324(10) of the Corporations Act 2001 (Cth), is now more real than apparent as a consequence of a breach of s 442C of the Act, as occurred in this case.
The personal liability of
company directors has been
a source of debate for some
time. The issue has evoked
strong responses from
industry groups such as the
Law Council of Australia and
the AICD, and has resulted in
several public inquiries into
the issue dating back to the
Cooney Report in 1989 and
several subsequent reports
The Personal Property
Securities Act 2009 (the
PPSA) has been in operation
for over two years now.
The two-year transitional
period ended at the end of
January 2014 and all PPSA
security interests must be
properly perfected in order
to preserve their priority in
contests with other security
interests and to avoid the
vesting of the security
interest upon formal
With the conclusion of
the transitional period
of the Personal Property
Securities Act 2009 (PPSA)
at the end of January
2014 it is a good time
for those dealing with
supply contracts that
contain retention of title
arrangements to review
Harris, J. 2014, 'PPSA: Recent Developments', Australian Insolvency Journal, vol. 26, no. 2, pp. 30-33.
Harris, J. 2014, 'THE PROTECTION OF EMPLOYEE ENTITLEMENTS IN INSOLVENCY', Australian Insolvency Journal, vol. 26, no. 2, pp. 64-64.
It is now established, following High Court dicta in Walker v Wimborne and Spies, that directors owe a duty to consider creditors interests upon corporate insolvency, and that such a duty is one of imperfect obligation that is incapable of direct enforcement by the creditors. Notwithstanding such orthodox authority, the precise nature and scope of directors duties to creditors upon corporate insolvency remains a vexed issue that continues to plague the judiciary as a consequence of the absence of any detailed consideration of such issues by the High Court. The recent appellate court decision in the Bell Group case exemplifies the legal uncertainties on this topic, which arose upon the directors exploration of corporate rescue plans in the context of looming insolvency. In particular, it is now unclear whether directors must go beyond consideration of creditors interests and ensure that creditors are protected in conformity with the pari passu principle. The extent to which the judiciary can intervene to adjudicate on the directors beliefs and business judgments is also clouded by uncertainty. The High Court of Australia will consider such issues in an upcoming appeal. This note discusses the context of the decision and argues that the directors duties to consider creditor interests, while beneficial, should not be elevated to ensure pari passu treatment when directors make commercial decisions to save the company. To hold directors to be in breach of fiduciary duties in such circumstances, when they have acted in good faith, runs the risk of hindering corporate rescue opportunities, as well as undermining the business judgment of directors. Further, the goal of creditor protection can be achieved by existing legal rules and does not require the elevation of the duty from one of consideration to one of protection.
Harris, J. 2013, 'Re Maiden - landmark personal property security decision', Keeping Good Companies, vol. 65, no. 7, pp. 403-405.
Harris, J. & Mirzai, N. 2012, 'Register on the PPSR in haste, repent at leisure', Keeping Good Companies, vol. 64, no. 9, pp. 534-535.
Harris, J. & Mirzai, N. 2012, 'The Personal Property Securities Act and company secretaries', Keeping Good Companies, vol. March, no. 2, pp. 92-95.
Application of separate entity doctrine and corporate rule of limited liability to corporate group members practice of establishing subsidiary companies for dedicated purposes issues in recent BHP Billiton litigation intersection between tax law and company law limits of separate entity doctrine in the context of corporate groups.
Debt restructuring procedures aim to achieve a compromise between the needs of the debtor and its creditors. It is common for business to be conducted using group structures with related parties potentially exposing themselves to broad claims upon the debtor's insolvency, usually in a false hope of reparations. Enterprise groups may seek a global resolution to their disputes by proposing settlement arrangements that will address claims against the primary debtor as well as potential claims against related third parties. Recent decisions concerning the collapses of Lehman Brothers Australian and Opes Prime offer contrasting approaches to the question of whether a formal restructuring procedure (such as a scheme of arrangement or a deed of company arrangement) can include rights that creditors have against third parties. This article considers the potential scope and effect of these decisions and suggests that other mechanisms may also be available, particularly the long-standing but little used s 510 arrangement under voluntary liquidation
Personal liability of company directors - need to harmonise state and federal laws - disclosure practices and requirements under s 1041H of the Corporations Act - distinguishing direct and indirect liability - due diligence defences - need for law reform to balance managerial control with organisational efficiency and innovation.
Harris, J. & Hargovan, A.C. 2011, 'Cutting the Gordian Knot of corporate law: Revisiting veil piercing in corporate groups', Australian Journal of Corporate Law, vol. 26, no. 1, pp. 39-54.View/Download from: UTS OPUS
Veil piercing within corporate groups is an area of corporate law that continues to confound and confuse. Many consider it an area full of 'hard cases making bad law' to such an extent that it simply defies principled analysis. This article undertakes an investigation of the principled roots of veil piercing within corporate groups and challenges the perceived utility of an agency analysis. The authors argue that the purported agency principles used in veil piercing cases are in reality something different from legal principles of agency.
Australia's corporate insolvency regime strives to provide flexible measures that allow stakeholders of a financially distressed company to come to a mutually beneficial arrangement. As with all insolvency laws, it is possible to bind dissenting creditors to the will of the majority in resolving these disputes. How nexible should corporate insolvency law be in facilitating corporate reorganisations? To what extent can/should individual creditors be forced to limit their rights against other stakeholders in the insolvency, including rights against third parties, in the name of collective benefit? This important question has recently been the subject of conflicting statements in several Federal Court decisions. After an expedited hearing the High Court dismissed an appeal from one of these Federal Court decisions in the Lehman Brothers case on 30 March 2010 and will release its reasons on 14 April 20 I O. This note considers the legal and policy issues involved in this matter.
Harris, J. 2010, 'Lehman Brothers applied in New Zealand', Insolvency Law Bulletin, vol. 11, no. 1, pp. 17-18.
Harris, J. 2010, 'Relief from insolvent trading liability', Australian Insolvency Journal, vol. 22, no. 1, pp. 14-19.
Harris, J. 2010, 'Share sales during deeds of company arrangement', Insolvency Law Bulletin, vol. 11, no. 1, pp. 9-12.
Harris, J. & Hargovan, A.C. 2010, 'Corporate groups: the intersection between corporate and tax law Commissioner of Taxation v BHP Billiton Finance Ltd', Sydney Law Review, vol. 32, no. 4, pp. 723-738.View/Download from: UTS OPUS
Commercial activities of corporate groups - tensions with traditional notions of corporate law and the concept of separate legal identity - issues in forthcoming High Court appeal - use of corporate treasury companies and limited recourse debt for the purposes of income tax legislation -- argument that the use of a member of a corporate group to provide in-house finance should not defeat the presumption of a company's independent and separate existence.
Harris, J. 2009, 'Corporate lawyers as accessories to breaches of directors' duties', Keeping Good Companies, vol. 61, no. 9, pp. 564-566.
The Global Financial Crisis has shone a bright light on the efficacy and scope of Australias corporate and financial regulatory system. The past year has seen several significant changes introduced, many of which have given more power and responsibility to Australia's corporate regulator ASIC. In some cases, greater regulatory attention and tougher legislative provisions have been needed and will hopefully provide for better outcomes for the Australian community. There is at least one area where the regulatory failings have been highlighted by the GFC and yet government attention has been conspicuously absent: insolvent trading. The economic challenges produced by the GFC have highlighted the need for effective restructuring and corporate rescue laws that encourage directors and managers to act to save businesses that are capable of saving but are suffering financial distress, in many cases because of broader market changes and depressed asset prices. This article discusses the disincentive for corporate restructuring posed by the insolvent trading prohibition by undertaking a comparative analysis of insolvent trading provisions in five industrialised countries. The author argues that Australias insolvent trading prohibition does not sufficiently promote corporate restructuring and therefore requires amendment. Particular law reform measures are suggested for consideration.
Harris, J. 2009, 'Lessons from abroad: its time to reform insolvent trading laws', Insolvency Law Bulletin, vol. 10, no. 1, pp. 2-5.
Harris, J. 2009, 'The role of future liabilities in insolvency law', Insolvency Law Bulletin, vol. 9, no. 8, pp. 129-132.
The financial turmoil and share market losses generated by the global financial crisis have provided ideal conditions for increased numbers of investor class actions. The numbers of firms involved in litigation funding and law firms involved in class actions are also increasing. Australian securities law seems to be at the beginning of a wave of investor class actions based on allegations of inadequate corporate disclosure. The fallout from the global financial crisis (GFC) has also focused attention on the efficiency of Australia's corporate rescue laws as companies struggle under onerous debt levels and attempt to rebuild balance sheets and restructure operations in much tighter credit conditions than in previous years. This article considers the tension between laws that seek to compensate investors through the use of class actions and laws that aim to promote corporate rescue attempts. It suggests that reform may be needed to ensure that these two important policy goals work more harmoniously together.
Harris, J. & Webbey, S. 2009, 'The risks of personal liability for defective corporate disclosure', Keeping Good Companies, vol. 61, no. 6, pp. 346-349.
Legg, M. & Harris, J. 2009, 'How the American dream became a global nightmare: An analysis of the causes of the Global Financial Crisis', The University of New South Wales Law Journal, vol. 32, no. 2, pp. 350-389.View/Download from: UTS OPUS
Recent cases involving in-house and external lawyers have attracted much media attention, from the C7litigation to the AWB Inquiry. Some of the media commentary and judicial remarks were directed at the role of the internal legal advisers in the conduct of the parties, both before and during litigation. The cases acknowledge the challenges faced by in-house counsel where the duty to client is blended with loyalty to the employer. The requirement for independence is a fundamental principle of the legal profession. The increasing use of in-house counsel challenges this principle. The conflict faced by in-house counsel is predominant in claims for privilege. This article examines the scope for privilege to be claimed in respect of communications involving in-house counsel.
Hargovan, A & Harris, J 2008, 'The Shifting Balance of Shareholders' Interests in Insolvency: Evolution or Revolution?', Melbourne Univeristy Law Review, vol. 31, no. 2.
Hargovan, A.C. & Harris, J. 2008, 'Shareholders as creditors: a response to the CAMAC discussion paper on law reform', Australian Journal of Corporate Law, vol. 22, no. 2, pp. 135-160.View/Download from: UTS OPUS
he CAMAC discussion paper regarding shareholder claims against insolvent companies has considered the issue of how best to address the implications of the High Courts decision in Sons of Gwalia. That decision recognised that shareholders may stand as creditors in a corporate insolvency by making a claim for damages based on statutory rights to compensation for defective disclosure.The decision has been highly controversial and has generated calls for law reform. The CAMAC discussion paper considers several options for reform, with various public submissions providing alternative options to address the tension between investor protection laws and corporate insolvency priorities. This article examines the range of suggested reforms and advocates a position of limited subordination, as well as other law reform measures, to address the practical, legal and policy issues raised by shareholder class actions against companies in financial difficulty.
Harris, J. 2008, 'Implications of margin lender insolvency', Australian Insolvency Journal, vol. 20, no. 3, pp. 4-6.
Harris, J. 2008, 'Initial impressions of the new statutory pooling provisions', Insolvency Law Bulletin, vol. 8, no. 9, pp. 134-136.
Harris, J. 2008, 'Stewart's Guide to Employment Law (1st ed), by Andrew Stewart', Australian Law Librarian, vol. 16, no. 2, pp. 149-149.
Harris, J. & Hargovan, A.C. 2008, 'The intersection between shareholders' and creditors' rights in insolvency: an Australian perspective', Annual Review of Insolvency Law, vol. 2007, pp. 699-734.View/Download from: UTS OPUS
Harris, J. & Siow, W.N. 2008, 'Uncertainty regarding civil penalties and privilege against penalties', Keeping Good Companies, vol. 60, no. 2, pp. 68-71.
Harris, J., Hargovan, A.C. & Austin, J. 2008, 'Shareholder Primacy Revisited: Does the Public Interest Have Any Role in Statutory Duties?', Company and Securities Law Journal, vol. 26, no. 6, pp. 355-376.View/Download from: UTS OPUS
The conventional view of corporate regulation is that corporations are to be managed for the benefit of their shareholders. The general law and statutory duties of directors and officers reflect this "shareholder primacy norm", with duties formulated to prevent directors acting otherwise than in the interests of shareholders. However, the general law and statutory duties are not identical. The remedies and enforcement mechanisms differ considerably, which raises the question as to whether the public enforcement of statutory duties carries with it a public interest mandate that general law duties do not. This article considers what role the public interest should have in enforcing statutory duties and whether such a role represents a challenge to the dominant shareholder primacy norm of corporate law. This issue is highly topical as recent decisions have suggested that the statutory duties of directors and officers are limited in their scope to protecting the interests of shareholders, even to the detriment of the public interest. The authors contest that viewpoint and argue that, at least in relation to statutory duties, directors and officers have obligations that extend beyond the narrow conception of the protection of shareholder wealth.
Zandstra, A., Harris, J. & Hargovan, A.C. 2008, 'Widening the new: Accessorial liability for continuous disclosure contraventions', Australian Journal of Corporate Law, vol. 22, no. 1, pp. 51-81.View/Download from: UTS OPUS
Australias continuous disclosure laws impose a regulatory burden on disclosing entities to ensure that all relevant information is accurately disclosed to the market in a timely manner. This regulatory burden is an important mechanism to encourage investor confidence in the quality and value of our capital markets. It is also important however that the system of continuous disclosure creates appropriate economic incentives for listed entities to voluntarily comply with the law. These incentives should fall not merely on the corporate entity but also on those involved in the regulatory contravention.This article examines the scope of accessorial liability for breaches of continuous disclosure laws. It advocates greater use of this legislative tool to ensure that the burden of continuous disclosure breaches falls on the persons responsible for the failure and not merely on the companys shareholders who may already have been penalised. A range of options are canvassed, in particular the establishment of an expert peer review panel, to facilitate this aim.
Hargovan, A & Harris, J 2007, 'Statutory Debt Subordination: An Appraisal of the North American Experience', Australian Journal of Corporate Law, vol. 20, no. 3.
Hargovan, A.C. & Harris, J. 2007, 'Sons of Gwalia and statutory debt subordination: An appraisal of the North American experience', Australian Journal of Corporate Law, vol. 20, no. 3, pp. 265-300.View/Download from: UTS OPUS
Hargovan, A.C. & Harris, J. 2007, 'Sons of Gwalia Ltd v Margaretic: the shifting balance of shareholders' interests in insolvency-evolution or revolution?', Melbourne University Law Review, vol. 31, no. 2, pp. 591-621.View/Download from: UTS OPUS
A critical analysis of the policy implications of the Sons of Gwalia decision.
Harris, J. 2007, 'Collapse Inc: the case of the sleeping watchdog?', Insolvency Law Bulletin, vol. 8, no. 2, pp. 21-23.
Opinion piece on public criticism of ASIC
This article examines the problems associated with the collapse of corporate groups; in particular, the tension that arises during insolvency between the application of the separate legal entity principle and the common commercial practice of managing corporate groups as a single economic entity. Specific attention is given to the difficulties faced by insolvency administrators dealing with extensive (and often inadequately documented) intermingling of assets between corporate group members and creditor confusion concerning the precise identity of the debtor corporation. One solution to these problems has been the use of pooling arrangements, with a range of statutory powers currently being used by different courts to facilitate the consolidation, for liability purposes, of the assets of the pooled group companies. However, each of the current methods of pooling has at least some measure of judicial uncertainty, which has prompted the introduction of a statutory pooling regime. This article will discuss how the proposed new pooling powers will overcome the problems that have arisen under the current methods for implementing pooling arrangements and attempt to provide some guidance as to how these new powers may be interpreted by the judiciary.
Harris, J. 2007, 'Engaging examination of trust law principles', Australian Law Librarian, vol. 14, no. 4, pp. 80-81.
Harris, J. 2007, 'Pooling: Part 2', Australian Insolvency Journal, vol. 19, no. 1, pp. 16-21.
Harris, J. 2007, 'Sir Ronald Wilson: a Matter of Conscience, by Antonio Buti', Australian Law Librarian, vol. 15, no. 4, pp. 69-70.
Harris, J. 2007, 'The revised statutory pooling provisions', Australian Insolvency Journal, vol. 19, no. 3, pp. 28-30.
comment on recent legislative changes to corporate insolvency law
Harris, J. & Hargovan, A.C. 2007, 'Sons of Gwalia: Navigating the line between membership and creditor rights in corporate insolvencies', Company and Securities Law Journal, vol. 25, no. 1, pp. 7-29.View/Download from: UTS OPUS
Purchasing shares in a company is an inherently risky proposition, which leaves the investor at the mercy of the vagaries of the market. However, one of the founding principles of modern capitalism is the ability of members to limit their liability to the unpaid value of their shares. The benefits of limited liability are well understood by market participants, but limited liability also has significant consequences for shareholders. It could be said that the quid pro quo for the statutory protection of limited liability conferred on shareholders is the deferral of their rights to claim a proportion of the company's assets in liquidation, which, in the case of an insolvent company, results in shareholders receiving no return on their investment. The boundaries of the rule that membership interests are deferred until after the creditors are paid in full (known as the rule in Houldsworth's case) have recently been tested by the Federal Court where shareholders have sought declarations that they were misled by the company into purchasing their shares on the market and therefore they are contingent creditors with an unliquidated damages claim. This paper examines whether it is appropriate for members to be classed as creditors where the claim arises out of the circumstances that led to the purchase of their shares. The significant practical implications of such a classification for the efficient regulation of insolvency administration will also be discussed.
Harris, J. & Nehme, M. 2007, 'An analysis of the Vines appeal', Company and Securities Law Journal, vol. 25, no. 8, pp. 554-558.
Harris, J 2006, 'Federal Collective Bargaining After Electrolux', Federal Law Review, vol. 34, no. 45.
Section 447A of the Corporations Act 2001 (Cth) provides the court with a unique power that allows it to mould the voluntary administration process to suit the needs of individual companies. The enactment of a federal corporations statute in 2001 has brought into question whether this power fits within the constitutional limitations that are imposed on federal law-making power. The suggestion has been raised recently that the power is so broad that it is constitutionally invalid. This article argues that the power is constitutionally valid principally on the basis that, despite its potential for broad application, the power has defined limits which retain its status as a judicial power.
Harris, J. 2005, 'Lifting the corporate veil on the basis of an implied agency: A re-evaluation of Smith, Stone and Knight.', Company and Securities Law Journal, vol. 22, no. 1, pp. 7-27.View/Download from: UTS OPUS
Harris, J. 2005, 'Pooling options for insolvent corporate groups', The Company Lawyer, vol. 26, no. 4, pp. 125-128.
Harris, J. & Gordon, B. 2005, 'Lost in Transition: Section 447A and the question of members' rights when a company transitions from voluntary administration to a creditors' voluntary liquidation', Insolvency Law Journal, vol. 13, no. 2, pp. 96-110.View/Download from: UTS OPUS
One of the benefits of voluntary administration under Pt 5.3A of the Corporations Act 2001 (Cth) is that it allows for a smooth transition from administration to a creditors' voluntary liquidation, particularly when the company cannot be returned to profitability by either the period of voluntary administration or under a subsequent deed of company arrangement. However, recent cases have posed the question as to the nature of the creditors' voluntary winding up into which insolvent companies transfer. This article examines these cases and argues that the transitional provisions in Pt 5.3A do not alter the substance of the subsequent creditors' voluntary liquidation, but rather merely provide an efficient gateway into a separate form of external administration. The scope and effect of the transitional arrangements between voluntary administration and creditors' voluntary liquidation is important because it frames the court's power to grant orders under s 447A. The authors argue that whilst s 447A orders may properly be made to give effect to the purposes of Pt 5.3A, they should not be made where the order dispenses with membership rights ordinarily accruing under voluntary liquidation.
Hargovan, A & Harris, J, 'Policy Issues Raised By the Subordination of Shareholder Claims'.
Harris, J 2015, 'Corporate Insolvency Law Reform: Reframing the Dialogue' in McCracken, S & Griffiths, S (eds), Making Banking and Finance Law: A snapshot, Ross Parsons Centre, Sydney, pp. 53-76.
Harris, J 2014, 'Should voluntary administration remain a one-size-fits-all procedure? Do we need a fast track system for small business rescues?' in Griffiths, S, McCracken, S & Wardrop, A (eds), EXPLORING TENSIONS IN FINANCE LAW: TRANS- TASMAN INSIGHTS, Brookers, Wellington, New Zealand, pp. 101-126.
Harris, J 2011, 'Enhancing the Role of Creditors' Committees in Corporate Rescue Laws' in Sarra Janis, P (ed), Annual Review of Insolvency Law 2011, Thomson Reuters (Scientific) Inc. & Affiliates, Toronto Canada, pp. 675-701.View/Download from: UTS OPUS
The global financial crisis (GFC) has focused the worlds attention on the nature and processes of bankruptcy law. The fallout from the GFC and changing credit conditions has caused many businesses to experience financial distress or bankruptcy, with millions of employees worldwide losing their jobs At present there are a number of massive reorganizations and corporate bankruptcies that have grabbed the attention of both the public and lawmakers, such as Nortel Networks in Canada, ABC Learning and Griffin Coal in Australia, Feltex in New Zealand and the worlds most expensive bankruptcy case, costing over one billion dollars, Lehman Brothers.
Harris, J. 2009, 'Substantive consolidation under statute law: lessons from Australia' in Janis Sarra (ed), Annual Review of Insolvency Law 2008, Thomson Canada, Canada, pp. 541-568.View/Download from: UTS OPUS
The principle that a corporation is a separate legal entity from its owners and managers is, together with the principle of limited liability given to registered corporations, a cornerstone of the modern capitalist system. Business corporations have grown from small entrepreneurial enterprises to large complex organizations controlling vast sums of money and resources. The purpose of this paper is not to question the validity or appropriateness of the separate legal entity principle but rather to examine the difficult questions that may arise when that principle is applied to an insolvent corporate group.
Public seminar for insolvency practitioners on blockchain, Bitcoin and digital assets
Harris, J 2015, 'From Corner Shop to Large Multinational: Should Voluntary Administration Remain a One-Size-Fits-All Procedure? Do We Need a Fast Track System for Small Business Rescues?'.