Cross-border insolvency: recognising foreign insolvency proceedings in Australia

A foreign liquidator, administrator or trustee in bankruptcy has no automatic power over assets in Australia. The Cross-Border Insolvency Act 2008 (Cth) adopts the UNCITRAL Model Law. A “foreign representative” can ask the Federal Court of Australia or a State Supreme Court to recognise the foreign proceeding. Recognition of a foreign main proceeding brings an automatic stay, and the court can order examinations and the remittance of Australian assets.

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Key points

The Model Law has had the force of law in Australia since 1 July 2008 (s 6).
Companies: apply to the Federal Court or a Supreme Court, such as the Supreme Court of Queensland. Individuals: Federal Court only.
A proceeding in the country of the debtor’s centre of main interests (COMI) is a “foreign main proceeding”. It brings an automatic stay (art 20).
Other proceedings are “non-main”. Relief is discretionary (art 21) and Australian creditors must be adequately protected (art 22).
Letters of request under s 581 of the Corporations Act 2001 (Cth) and s 29 of the Bankruptcy Act 1966 (Cth) are an alternative.

General guidance only – not legal advice. Please obtain independent legal advice before relying on any of this information. The law is stated as at October 2026.

What is the Cross-Border Insolvency Act 2008 and who can apply?

The Act gives the UNCITRAL Model Law on Cross-Border Insolvency, set out in Schedule 1, the force of law. If it is inconsistent with the Corporations Act or the Bankruptcy Act, the Model Law prevails (ss 21 and 22).

The applicant is the “foreign representative”. That is a person or body authorised in a foreign proceeding to administer the reorganisation or liquidation of the debtor’s assets (art 2). Liquidators, administrators and bankruptcy trustees qualify, as does a Chapter 11 debtor in possession: Moore v Australian Equity Investors [2012] FCA 1002.

Section 10 nominates the Federal Court and the State and Territory Supreme Courts for companies, and the Federal Court alone for individuals.

What is the difference between a foreign main and non-main proceeding?

A foreign main proceeding takes place where the debtor has its COMI. A non-main proceeding takes place where the debtor merely has an “establishment” (art 2).

Article 16(3) presumes that a company’s COMI is its registered office, and an individual’s is their habitual residence. The presumption can be rebutted by factors that are objective and ascertainable by third parties: Akers v Saad Investments Co Ltd [2010] FCA 1221.

In Kapila, in the matter of Edelsten [2014] FCA 1112, the debtor lived in Victoria. His Florida bankruptcy was recognised only as a non-main proceeding, but the court still appointed an Australian representative to administer local assets.

What does recognition give a foreign representative?

Automatic stay (art 20). On recognition of a foreign main proceeding, individual actions and execution against the debtor’s assets are stayed. The debtor’s right to transfer or encumber assets is suspended. Under s 16 of the Act, the stay has the same scope and exceptions as an Australian liquidation or bankruptcy stay. Secured creditors keep their rights.

Discretionary relief (arts 19 and 21). For main or non-main proceedings, the court may stay proceedings and suspend dealings with assets. It may order examinations and production of documents, and entrust Australian assets to the foreign representative. Interim relief is available from filing (art 19), and a recognised representative may bring voidable transaction claims (art 23).

Protection of local creditors (art 22). Before assets are distributed to the foreign representative, the court must be satisfied that Australian creditors are adequately protected (art 21(2)). In Akers v Deputy Commissioner of Taxation [2014] FCAFC 57, Cayman Islands liquidators of Saad Investments proposed to remit all Australian assets. The Full Federal Court upheld orders letting the ATO first recover its proportionate share.

What must be filed, and how long does recognition take?

Article 15 requires:

a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative, or a certificate from the foreign court
a statement identifying all known foreign proceedings concerning the debtor and, under s 13, any Australian insolvency proceedings
an affidavit from the foreign representative verifying those documents and the facts supporting COMI
English translations where needed (art 15(4)).

Part 15A of the Federal Court (Corporations) Rules 2000 requires published notice of the filing (Form 20) and of any order made (Form 21). Section 14 imposes a continuing duty to report changes to the foreign proceeding or any new proceedings. The Supreme Court of Queensland has equivalent rules.

The court must decide the application “at the earliest possible time” (art 17(3)). A well-documented, uncontested application is often determined within a few months.

How do cooperation, concurrent proceedings and letters of request work?

Australian courts and office holders must cooperate “to the maximum extent possible” with foreign courts and representatives (arts 25 to 27). Where an Australian liquidation or bankruptcy also exists, relief must be consistent with it and no creditor may be paid twice (arts 28 to 32).

The older mechanisms survive. Under s 581 of the Corporations Act, an Australian court must act in aid of a court of a prescribed country. Those countries include New Zealand, Singapore, Malaysia, the United Kingdom, the United States and Canada. The court may aid any other foreign court. Each request comes by letter of request from the foreign court. Section 29 of the Bankruptcy Act is the personal insolvency equivalent. In Re Chow Cho Poon (Private) Ltd [2011] NSWSC 300, the Supreme Court of New South Wales assisted Singapore liquidators. It explained how s 581 sits alongside the Model Law.

What should you do if you are a foreign representative with Australian assets?

Identify the Australian assets, claims and any proceedings already on foot against the debtor.
Check whether an Australian liquidator, administrator or trustee has been appointed.
Gather evidence of COMI and certified copies of the appointment order, with translations.
Decide between recognition and a letter of request, and whether interim relief is needed.
Instruct Australian lawyers to prepare the originating process, affidavits and notices.

How Taylor David can help

We act for foreign liquidators, administrators, trustees in bankruptcy and their lawyers, and for Australian creditors affected by foreign proceedings. We advise only on Australian law and Australian-based matters. We can:

advise whether the proceeding is likely to be recognised as main or non-main
prepare and file the recognition application in the Federal Court or the Supreme Court of Queensland
seek interim relief, examinations and orders to realise or remit Australian assets
pursue liquidator claims and debt recovery for a foreign estate.

This work sits within our insolvency and litigation practices.

Frequently asked questions

Questions we are often asked

Does a foreign liquidator need an Australian court order to deal with Australian assets?

In practice, yes. Banks, land registries, debtors and courts in Australia will not usually act on a foreign appointment alone. A recognition order gives the foreign representative standing, an automatic stay for a main proceeding and specific orders over assets. A letter of request under s 581 is an alternative for some countries.

Which court should a foreign representative apply to?

For a company, the Federal Court of Australia or the Supreme Court of the relevant State. In Queensland, that is the Supreme Court of Queensland in Brisbane. For an individual debtor, only the Federal Court has jurisdiction. Its national reach makes it the usual choice where assets sit in several States.

What is a debtor’s centre of main interests?

COMI is where the debtor administers its interests on a regular basis, so that third parties can ascertain it. The Model Law presumes it is a company’s registered office or an individual’s habitual residence. That presumption can be rebutted by objective evidence, such as where management sits and where creditors deal with the debtor.

Can Australian creditors still be paid if assets are sent overseas?

The court must ensure Australian creditors are adequately protected before authorising distribution to a foreign representative (arts 21(2) and 22). In Akers v Deputy Commissioner of Taxation, the Cayman Islands would not admit an Australian tax claim. The ATO was therefore allowed to recover its proportionate share from Australian assets. Secured creditors’ rights are also preserved.

Can a foreign representative examine people in Australia?

Yes. Under art 21(1)(d), on recognition the court may order the examination of witnesses and the taking of evidence. It may also order the delivery of information about the debtor’s assets, affairs, rights, obligations or liabilities. The orders are discretionary and must be necessary to protect the debtor’s assets or the interests of creditors.

General guidance only – not legal advice. Please obtain independent legal advice before relying on any of this information. The law is stated as at October 2026.

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