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In times of financial distress, small businesses often seek ways to reorganize and overcome their challenges. Small business restructuring offers a viable solution by allowing directors to take control of their company’s financial affairs and implement necessary changes for recovery. This article aims to explore small business restructuring and sheds light on the concept of “debtor-in-possession”, which empowers business owners during the restructuring process.


Understanding Small Business Restructuring

Small business restructuring involves the strategic reorganization of a company’s operations, finances, or ownership structure to improve efficiency, profitability, and long-term viability. In Australia, small business restructuring is governed by the Corporations Act 2001 (Cth). This legislation provides a framework to support financially distressed businesses and allows them to access specific provisions through the Small Business Restructuring (SBR) process.

Australian Legislation and Small Business Restructuring

Corporations Act 2001 (Cth)

The Corporations Act is the primary legislation governing company structures and operations in Australia. Under Part 5.3A of the Act, eligible small businesses have access to simplified restructuring processes. This legislation empowers business owners to drive the restructuring process and regain financial stability.

Small Business Restructuring Practitioner (SBRP)

The Small Business Restructuring Practitioner plays a crucial role in the restructuring process. They assist the directors in preparing a restructuring plan, liaise with creditors, and ensure compliance with Australian legislation. The SBRP supports directors throughout the process, empowering them to make informed decisions.

Director in Possession: Empowering Business Owners

The concept of director in possession grants business owners, specifically the directors of a company, the authority to remain in control of their company’s affairs during the restructuring process. This approach allows directors to actively participate in the decision-making process, implement necessary changes, and retain a vested interest in the company’s future.

Key Features of Director in Possession:

  1. Decision-Making Authority
    The directors retain decision-making authority and control over the restructuring process. They are responsible for developing a restructuring plan, negotiating with creditors, and implementing necessary changes. This empowerment ensures that the directors’ interests and business objectives are considered throughout the process.
  2. Preservation of Business Value
    By allowing directors to remain in control, the director-in-possession model aims to preserve the value of the business. Directors are often more familiar with the intricacies of their operations, enabling them to implement strategies that maximize the company’s value and potential for recovery.
  3. Enhanced Stakeholder Collaboration
    The director-in-possession model fosters collaborative relationships between the directors and stakeholders, including employees, suppliers, and creditors. This collaborative approach encourages open communication, builds trust, and increases the likelihood of achieving mutually beneficial outcomes. By actively involving stakeholders, directors can better navigate the challenges of restructuring and maintain essential business relationships.
  4. Timely Decision-Making
    The director-in-possession model promotes swift decision-making, enabling directors to respond promptly to market conditions and implement necessary changes. This agile approach allows businesses to adapt quickly to new circumstances and seize opportunities for recovery.

Director in Possession in Australian Small Business Restructuring

In the context of Australian small business restructuring, the director-in-possession model offers several advantages:

  1. Preserving Business Continuity
    The director-in-possession model facilitates the continuation of business operations, ensuring minimal disruption to employees, customers, and suppliers. The directors can make informed decisions to streamline operations, renegotiate contracts, and restructure debt obligations, with the aim of preserving the business’s continuity.
  2. Maintaining Employee Confidence
    Employees play a vital role in a business’s success, and their confidence is crucial during the restructuring process. By allowing directors to remain in control, the director-in-possession model instils a sense of stability and reassurance among employees. This, in turn, can help maintain productivity and retain valuable staff.
  3. Minimizing Costs
    The director-in-possession model aims to minimize costs associated with the restructuring process. As directors actively participate in decision-making, they can implement cost-saving measures, renegotiate contracts, and rationalize operations to enhance efficiency. By taking these proactive steps, businesses can mitigate financial burdens and increase their chances of recovery.
  4. Tailored Restructuring Plans
    The director-in-possession model allows for the development of tailored restructuring plans. Directors can customize their plans according to the unique needs and circumstances of their businesses. This flexibility enables directors to focus on specific areas that require attention and implement strategies that align with their long-term goals.


Small business restructuring provides a valuable avenue for financially distressed companies to regain stability and continue operating. The legislation empowers business owners by granting them control over the restructuring process. By actively participating in decision-making and implementing necessary changes, directors can preserve business value, collaborate with stakeholders, and pursue a path towards recovery. The director-in-possession model, supported by the Corporations Act 2001 (Cth), serves as a vital tool in facilitating small business restructuring in Australia and offering a lifeline to struggling enterprises.

Liam Bailey, Managing Partner
O’Brien Palmer

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