The Accountant stars Ben Affleck as a martial arts specialist and expert marksman. In the real world however, registered liquidators (who are also bean counters by profession) are more mild-mannered. This raises the question, what does a liquidator do when, in the course of winding up a company, directors or officers continually obstruct access to financial records and property?
Liquidators are not natural risk-takers. This is an important part of their business model. The winding up of an insolvent company has serious consequences for directors and creditors and is therefore the subject of significant dispute. In light of this, liquidators will do whatever they can to reduce the risk of extra litigation which eats into their profit margins (by potentially coming out of recoverable assets).
Where directors or officers of a company are refusing to co-operate with the liquidator, this cautious approach usually means that the liquidator is not willing to risk being sued for trespass or conversion by confiscating assets prematurely.
Given that there is a history in Australia of directors hiding assets, books and records, liquidators would generally prefer to apply to the Court for a warrant that authorizes them to take direct action and force entry into third party premises. In this article, we look in detail at how this power works.
Liquidator Power of Search and Seizure
So what are the key elements of the liquidator’s power of search and seizure? There are two versions of the warrant available; one relating to the property of the debtor company and one relating to the ‘books’ or financial records. Both versions are set out in section 530C of the Corporations Act 2001 (Cth).
The first version provides that the Court may issue a warrant where the Court is satisfied that a person has concealed or removed property, with the result that the liquidator is delayed or prevented from taking property into their custody or control.
The second version of the power is available against anyone who has concealed, destroyed or removed books of the company or is about to do so.
It is worth noting that one difference between these two versions of the power is that the ‘books’ version is available in anticipation of the books being mishandled, whereas the property version is only available where the property has actually been concealed or removed.
An application under section 530C may be made by a liquidator, a provisional liquidator or the Australian Securities and Investments Commission (ASIC).
Note also that the warrant can be issued against any person, not just those directly involved with the debtor company. This means that if the property or books are transferred to any third party (such as a friend or family member), this will not prevent the warrant from being enforced.
Once the warrant is issued, the applicant has the power to search for and seize the property and books, and may “break open a building, room or receptacle where the property is or the books are or where the person reasonably believes the property or books to be”.
Is this a ‘Remedy of Last Resort’?
As long as the elements of the application set out above are satisfied, the Court is permitted to issue the warrant, pursuant to the Corporations Act 2001 (Cth). There is no mention in the legislation of a requirement that other options for retrieving the property or books must be exercised first.
Nevertheless, the search and seizure power is exercised entirely at the discretion of the Court: It is not required to issue a warrant under the circumstances set out in section 530C. In light of this, the Court has confirmed that it expects other options for recovering property and books to be exercised first, and that this power is treated as a ‘remedy of last resort’ (see, for example, Carrello (Liquidator), in the matter of Drilling Australia Pty Ltd (in liq)  FCA 1563).
Options available for liquidators under the Corporations Act 2001 (Cth), prior to search and seizure, include:
- Section 530A: Officers of the debtor company are required to give up their books and inform the liquidator where any other books that they know of are located. This section also includes broad obligations to attend meetings with the liquidator, give them requested financial information and do “whatever is reasonably required” to help the liquidator in winding up the company. A failure to comply with this section is subject to criminal liability (see section 530A(6A)).
- Section 530B: This section provides that the Court is entitled to the books of the company and that a person must not hinder or obstruct the liquidator in accessing the books. Under subsection (4) of that section, the liquidator may give a written notice requiring the person to deliver the books in their possession. The person to whom the notice is addressed then has three days to respond.
If a liquidator has failed to request property or books in the possession of directors or officers of the debtor company under these sections, the Court is unlikely to grant an application for a warrant under section 530C.
In practice, as liquidators need to hire counsel and pay for an application to the Court, liquidators are likely to only use the section 530C power once other options have been exhausted.
Does a Warrant under Section 530C come with Conditions?
As noted, the power under section 530C is a strong one. It provides a power for private sector accountants (ie. not governmental law enforcement) to “break open a building, room or receptacle” as they see fit in carrying out a warrant.
This is all the more significant given that an application under section 530C is ex parte, ie. the recipient does not usually know about the warrant and will generally only know about its existence when it is executed.
In light of this, it may be surprising that the Courts do not put any standard conditions on their use. This was confirmed in Steel Tigers Pty Ltd (in liq) (Steel Tigers)  NSWSC 1748 (see also an in-depth discussion of the issue by Matt Karam in ‘Recent developments: Warrants to liquidators to search for and seize property removed prior to liquidation’ (2015) 23(1) Insolvency Law Journal 45). The Court confirmed in that case that applicable conditions will be considered on a case-by-case basis.
While not a condition per se, it is worth noting that the usual form of these warrants provides that the Australian Federal Police will support liquidators in executing the warrant on request.
The power for liquidators to apply to the Court for a warrant for the search and seizure of books and property is a strong one. In light of this, the Court expects that liquidators only make such an application as a last resort. Any conditions applied to the warrant will be considered on a case-by-case basis.