In the decision Young, Jr (on behalf of debtor-in-possession of Buccaneer Energy Ltd) v Buccaneer Energy Ltd  FCA 711, the Federal Court of Australia considered whether Chapter 11 proceedings under the United States Bankruptcy Code should be recognised as a foreign main proceeding under the Cross-Border Insolvency Act 2008 (Cth) (CBIA) and Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law (Model Law).
In doing so, the Court considered whether the presumption under Article 16(3) that a debtor company’s place of registered office is its centre of main interests was rebutted.
The Model Law is designed tosupplement the insolvency laws of signatory States to more effectively address proceedings involving insolvent debtors that have assets or creditors in more than one country. The Model Law has been given force in Australia by the CBIA.
The Model Law allows representatives of foreign insolvency proceedings a right of access to the courts of an enacting country to apply for recognition of the foreign proceeding as a “foreign main proceeding”.
Buccaneer Energy Limited is an Australian public company listed on the ASX, which has a number of wholly owned subsidiaries incorporated in the United States.
The plaintiffs, John Young Jr and the Board, are the Chief Restructuring Officer and board of directors of Buccaneer. Young Jr brought Chapter 11 proceedings in the United States Bankruptcy Court southern district of Texas in respect of the insolvency of Buccaneer (United States Proceeding), and the plaintiffs subsequently applied to the Federal Court of Australia to have the United States Proceeding recognised in Australia as a foreign main proceeding.
An unsecured creditor of Buccaneer, Chrystal Capital Partners LLP, opposed the application on the basis that the United States Proceeding was not a foreign main proceeding.
Article 17(2) of the Model Law states that a foreign proceeding shall be recognised as a foreign main proceeding if it is taking place in the State where the debtor has the “centre of its main interests”.
In determining whether the United States Proceeding could be considered a foreign main proceeding, the Court was therefore required to determine whether Buccaneer’s “centre of main interests” was in Australia or the United States.
Pursuant to Article 16(3) of the Model Law, the debtor’s registered office is presumed to be the debtor’s centre of main interests in the absence of proof to the contrary. In determining this issue, the Court confirmed that a debtor’s centre of main interests must be identified by reference to criteria that are objective and ascertainable by third parties.The Court considered that the ASIC search and general report relied upon by Chrystal did no more than merely identify Buccaneer as an Australian listed company with a registered office in Queensland. A closer look at the annual report disclosed that the parent company’s real activities, and not just those of the subsidiary companies, are in substance primarily focussed on activities in the Unites States, and in particular, the exploitation of oil and gas assets in Alaska.
The Court then determined that, based on the evidence adduced by the plaintiffs, it was objectively ascertainable by a third party that the centre of main activity of Buccaneer is in fact Houston, Texas, despite having a registered office in Australia.
Some of the factors leading to this decision included that:
- Buccaneer’s Australian office is very small;
- A number of documents, including insurance, fundraising and guarantee documents, business cards of key executives and tax returns, refer to Buccaneer as carrying out its business in the United States; and
- Buccaneer performed a number of key functions from offices located in the United States, including accounting, payment of accounts and employees, as well as conducting its technical evaluation, engineering design, operational and logistical preparation and execution for the company’s oil and gas assets.
The effect of recognising the United States Proceeding as a “foreign main proceeding” meant that the continuation or commencement of individual proceedings or execution actions concerning the debtor’s assets were stayed.
In determining the centre of main interests, a Court will look to objective evidence relating to the debtor’s activities which is ascertainable by third parties, and will focus on commercial realities.