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.
Many businesses supply goods to other businesses on credit. In many cases, this inventory is covered by a so-called ‘Retention of Title’ clause in favour of the supplier. Here we assess the consequences of liquidation on a Retention of Title claim, the impact of the Personal Properties Securities Act 2009 (Cth) and whether a liquidator might ever be permitted to ignore such a claim (the answer, generally speaking, is no – they cannot ignore it).
Directors often fail to pay themselves a salary before winding up. Instead, many small and medium-sized enterprise (SME) directors pay themselves throughout the lifetime of a company by withdrawing cash that is accounted for in a company loan account. In doing so, directors often seek to delay the payment of the income tax (PAYG) that they would have to pay if they drew a salary.
Small-to-medium sized business owners can’t effectively outsource the responsibility for driving a turnaround process when their business is in financial trouble. They can hire sensible staff and competent professional advisors but they are the only people with the incentive (skin in the game) and experience (because they started the business) to drive forward a turnaround process.
The dynamics of liquidations can quickly turn toxic. Directors initially see the liquidator as a savior from tax debts and creditor actions and then when the investigations begin the directors see the liquidator as their enemy.
Once a director (or directors) has made the decision that a liquidator be appointed due to insolvency, who should they appoint? It is crucial that directors engage a sensible, experienced and practical (ie. commercially-minded) liquidator.
If you receive a letter from a liquidator demanding tens or even hundreds of thousands of dollars as part of a liquidation process, what do you do next?
In this article we explain when a transaction might be voidable under that section, how these transactions differ from another type of voidable transaction, uncommercial transactions, and how liquidators pursue claims under this section.