Modelling construction business performance

Searching academic databases for records on ‘business failure’, ‘business distress’ or ‘bankruptcy��� yields a large body of studies on qualitative, empirical, theoretical and simulation aspects. It is a central part of this research to distil from this large quantity of potentially relevant reports and methodologies those which can both flag and predict business failure in the construction industry. An additional search term, such as, ‘construction’, ‘construction industry’ or ‘contractor’ yields a much smaller number of hits, many of which emphasize the construction industry’s distinctive characteristics. We scientists need first to understand the subject of investigation and the environment in which it lives. To do so, an analysis of existing successful and failed approaches to particular research questions is helpful before embarking on new territory. This guides the structure of the following report for we first review papers that specifically report on aspects of business failure in the construction industry followed by, (a) an overview of promising candidates borrowed from other disciplines and industries, and (b) a possible novel approach. An Australian (Queensland) perspective on the topic will also drive this investigation as most of the published research has been applied to the US and UK construction industries.

Franchisor failure : an assessment of the adequacy of regulatory response

Franchisor failure is one of the most problematic areas of the franchise relationship. It impacts negatively on landlords and other suppliers, but the contracting parties that are currently without legal rights to respond when a franchisor fails, and thus without consumer protection, are its franchisees. In this thesis I explore the current contractual, regulatory and commercial environment that franchisees inhabit, within the context of franchisor failure. I conclude that ex ante there are opportunities to level the playing field through consumer protection legislation. I also conclude that the task is not one solely for the consumer protection legislation; the problem should also be addressed ex post through the Corporations Act.

The certainty of tax in insolvency : where does the ATO fit?

There are several ways that the Commissioner of Taxation may indirectly obtain priority over unsecured creditors. This is contrary to the principle of pari passu, a principle endorsed by the 1988 Harmer Report as one that is a fundamental objective of the law of insolvency. As the law and practice of Australia's taxation regime evolves, the law is being drafted in a manner that is inconsistent with the principle of pari passu. The natural consequence of this development is that it places at risk the capacity of corporate and bankruptcy laws to coexist and cooperate with taxation laws. This article posits that undermining the consistency of Commonwealth legislative objectives is undesirable. The authors suggest that one means of addressing the inconsistency is to examine whether there is a clearly aligned theoretical basis for the development of these areas of law and the extent that alignment addresses these inconsistencies. This forms the basis for the recommendations made around such inconsistencies using statutory priorities as an exemplar.

Cross-border insolvency

Panellist commentary on delivered conference papers on the topic of Cross-border Insolvency.

The Australian corporate rescue provisions : how do they compare?

A notable feature of corporate legislative development in western countries for the past 30 years is the various mechanisms introduced to facilitate the survival of company structures facing insolvency. Australia’s corporate rescue version, called a “voluntary administration”, is now contained in Part 5.3A of the Corporations Act 2001 (Cth), although first introduced in 1993. The Australian provisions apply to all corporate entities and commence with a short moratorium followed by a meeting of creditors. At the creditors’ meeting a “rescue” plan called a deed of company arrangement may be entered into, or, alternatively the company may be liquidated. The voluntary administration provisions have become a significant part of Australia’s corporate insolvency landscape and are critical to the operation of corporate law outside of insolvency. Australia does not have a specialist bankruptcy court, rather it utilises the English approach where insolvency practitioners are accountants and appointed to the insolvent company as administrators. In Australia, insolvency practitioners must be registered with the Australian Securities and Investments Commission (“ASIC”), the corporate and securities regulator. A voluntary administration is usually commenced by the board of directors appointing an insolvency practitioner to the company. There exists no opportunity for a voluntary administration to commence at the creditors’ or court’s behest. This chapter seeks to address the comparative necessity of Australia’s corporate regime.

Practical Advice to Entrepreneurs Series by ACE Adjunct Professor Dean Shepherd: Practical advice for coping with business failure

The author, Dean Shepherd, is of entrepreneurship—how entrepreneurs think, decide to act, and feel. He recently realized that while his publications in academic journals have implications for entrepreneurs, those implications have remained relatively hidden in the text of the articles and hidden in articles published in journals largely inaccessible to those involved in the entrepreneurial process. This series is designed to bring the practical implications of his research to the forefront.

For farmers, drought not the most dangerous predator on the horizon

Lack of water can be the least of a farmer’s worries in times of drought. Predatory banks can be just as deadly to a farmer’s livelihood. Former Queensland farmer and grazier Lynton Freeman has become increasingly anxious about the financial tightrope being walked by Australian farmers as the record floods of 2011 have given way in only three years to savage drought. He fears for hundreds of family farmers at risk — not from lack of water, but from lack of knowledge in how to manage their businesses through the drought and keep their heads above the financial water that will threaten many before this drought breaks.

Practical Advice for Entrepreneurs

I am interested in the psychology of entrepreneurship—how entrepreneurs think, decide to act, and feel. I recently realized that while my publications in academic journals have implications for entrepreneurs, those implications have remained relatively hidden in the text of the articles and hidden in articles published in journals largely inaccessible to those involved in the entrepreneurial process. This book is designed to bring the practical implications of my research to the forefront. I decided to take a different approach with this book and not write it for a publisher. I did this because I wanted the ideas to be freely available: (1) I wanted those interested in practical advice for entrepreneurs to be able to freely download, distribute, and use this information (I only ask that the content be properly cited), (2) I wanted to release the chapters independently and make chapters available as they are finished, and; (3) I wanted this work to be a dialogue rather than a one-way conversation—I hope readers email me feedback (positive and negative) so that I can use this information to revise the book. In producing the journal articles underpinning this book, I have had the pleasure of working with many talented and wonderful colleagues—they are cited at the end of each chapter. I hope you find some of the advice in this book useful.

Contradictions and the Appropriation of ERP Packages

Enterprise Resource Planning (ERP) software typically takes the form of a package that is licensed for use to those in a client organisation and is sold as being able to automate a wide range of processes within organisations. ERP packages have become an important feature of information and communications technology (ICT) infrastructures in organizations. However, a number of highly publicised failures have been associated with the ERP packages too. For example: Hershey, Aero Group and Snap-On have blamed the implementation of ERP packages for negative impacts upon earnings (Scott and Vessey 2000); Cadbury Schweppes implemented plans to fulfil 250 orders where normally they would fulfil 1000 due to the increased complexity and the need to re-train staff post implementation (August 1999) and FoxMeyer drug company’s implementation of an ERP package has been argued to have lead to bankruptcy proceedings resulting in litigation against SAP, the software vendor in question (Bicknell 1998). Some have even rejected a single vendor approach outright (Light et. al. 2001). ERP packages appear to work for some and not for others, they contain contradictions. Indeed, if we start from the position that technologies do not provide their own explanation, then we have to consider the direction of a technological trajectory and why it moves in one way rather than another (Bijker and Law 1994). In other words, ERP appropriation cannot be predetermined as a success, despite the persuasive attempts of vendors via their websites and other marketing channels. Moreover, just because ERP exists, we cannot presume that all will appropriate it in the same fashion, if at all. There is more to the diffusion of innovations than stages of adoption and a simple demarcation between adoption and rejection. The processes that are enacted in appropriation need to be conceptualised as a site of struggle, political and imbued with power (Hislop et. al. 2000; Howcroft and Light, 2006). ERP appropriation and rejection can therefore be seen as a paradoxical phenomenon. In this paper we examine these contradictions as a way to shed light on the presence and role of inconsistencies in ERP appropriation and rejection. We argue that much of the reasoning associated with ERP adoption is pro-innovation biased and that deterministic models of the diffusion of innovations such as Rogers (2003), do not adequately take account of contradictions in the process. Our argument is that a better theoretical understanding of these contradictions is necessary to underpin research and practice in this area. In the next section, we introduce our view of appropriation. Following this is an outline of the idea of contradiction, and the strategies employed to ‘cope’ with this. Then, we introduce a number of reasons for ERP adoption and identify their inherent contradictions using these perspectives. From this discussion, we draw a framework, which illustrates how the interpretive flexibility of reasons to adopt ERP packages leads to contradictions which fuel the enactment of appropriation and rejection.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.

Developments in court to court communications in International insolvency cases

As business increasingly operates on a global basis, courts are called upon more often to adjudicate insolvency cases with international connections. The financial collapse of Lehman Brothers Holding Inc (‘Lehman Holdings’) provides a recent example where courts across many jurisdictions were called upon to determine issues arising from a multistate insolvent enterprise. Lehman Holdings filed for Chapter 11 bankruptcy protection in the United States on 15 September 2008. Lehman Brothers was the fourth largest investment bank in America and the largest company ever to file for bankruptcy in the United States. However the effects of its collapse were felt worldwide, including within Australia.