When a business is in serious financial trouble, what is the best path ahead? This is, of course, a question for the directors of struggling businesses themselves, but it’s also a question for their lawyers, accountants and creditors.
Pre-insolvency advice is an area that is relatively under-regulated in Australia. While there is a range of Codes of Ethics and professional standards that may apply, they will only apply where an individual is a member of that specific profession or association (e.g. ARITA, CPA Australia or ABRTC).
As with any profession, it is crucial that there is some level of oversight of the actions of insolvency practitioners. This is the only way to ensure that they are living up to their professional and legal standards.
A key purpose, arguably the prime purpose of a liquidation, is to give creditors the best possible return on their debt. After all, in the case of an insolvent liquidation, it is almost always the demands of creditors (such as through a statutory demand, see below) which precipitate a winding up or liquidation process.
Are you owed money by a company that is being wound up? Don’t get your hopes up until you have seen the 3 month statutory liquidator’s report. It is this report that will give a clear indication of the likelihood of a return.
The winding-up of a company is a daunting experience for a director. They know that their previous actions are under close scrutiny. But does that scrutiny include their personal assets? In short, yes. But liquidators need to tread carefully. In this article, we look into liquidators using the examination power to inquire into a director’s personal assets.
A business turnaround is about getting a business moving in the right direction. Survival is the hopeful outcome of any turnaround process. Survival is a change in the challenged business for the better. It is the process by which a business in financial crisis is transformed into a viable entity.
Corporate insolvency practitioners are important gatekeepers in the economy. In Australia, there is a paradox that the system is designed to try to stop the insolvency practitioner from giving meaningful pre-insolvency advice to insolvent businesses. This is a pity because insolvency practitioners are well placed to give pre-insolvency advice.
Anyone who has worked with, and around, insolvency practitioners in Australia knows that they are a frustrated lot. Why is this? Here, we take a look into some recent empirical research which seeks to explain why insolvency practitioners feel this way. We then ask, is this a genuine problem? Or, is it because, like most industries, their industry is more heavily scrutinised and more competitive than in the recent past?
An important task for a liquidator, once appointed, is to see whether there are any transactions of the company that are ‘voidable’, and can be clawed back for the purposes of distribution to creditors.
In this article we explore the circumstances under which the Australian Tax Office (ATO) will fund a liquidator’s claims. The take-away is that the ATO doesn’t necessarily fund on purely commercial considerations (unlike a private litigation funder) and so it is impossible to predict whether a liquidator will be funded by the ATO until the funding arrangement is already agreed upon.
If a liquidator is appointed to an insolvent company, and believes assets have been depleted due to fraud, what can they do? Even if the crime of fraud can be proven, this does not necessarily aid the liquidator in recovering assets. Here we look at the option for liquidators to use the concepts of ‘knowing receipt’ and ‘knowing assistance’ established in the 19th century English case of Barnes v Addy to recover from third parties in cases of fraud. It is a difficult claim to defend because it is vague and open to broad interpretation when a director fails to keep adequate books and records before winding up.