As a company director, you are at risk of insolvent trading if you suspect that your business is or may become insolvent. Australia has the strictest insolvent trading laws in the world. If an insolvent company goes into liquidation, the directors may face legal action. Under the safe harbour reforms, if you appoint a qualified restructuring adviser you may be protected from an insolvent trading action if your business later goes into liquidation.
Expert Insolvency Advice – explained
Firm Principal Ben Sewell takes you through an explanation of how we help insolvent clients
What are the benefits of lawyers compared to other advisers?
- Legal professional privilege – ensures that the discussions and planning are protected
- Independence – the lawyer is not subsequently appointed liquidator and can be conflict free
- Advocacy – the lawyer can provide ongoing advocacy throughout the process
- Compliance – the lawyer is the only service provider who can advise upon what is illegal and likely to result in a liquidator claw-back action
Our firm principal, Ben Sewell, is an insolvency law expert.
Ben’s comment on the role of a lawyer: Lawyers in the recent past have really dropped the ball with insolvency and this has resulted in a real stigma in the industry. The stigma is that if you go to an insolvency practitioner (i.e. a liquidator) they’re going to skin you alive. This is only half right.
The reality is that if you go to a barber they’ll suggest a haircut – insolvency practitioners are really undertakers and they get paid more the worse the outcome for directors. The role of a lawyer is to be something like an architect – who analyses, plans and executes a restructuring strategy. I do this for small-to-medium sized businesses.
The message for SMEs I have is shop around, talk to business owners who have been through a voluntary administration before, check the credibility of your service provider and then use legal professional privilege to realistically assess your options for saving your business.
Breakdown of our restructuring advisor services
Our core services are the analysis, execution and ongoing support of a pre-pack insolvency arrangement:
|Core service: Analysis||Core service: Execution||Supporting services|
|Conduct reviews to assess restructuring potential||Negotiate stand-still periods with creditors||Ongoing advocacy with external administrators|
|Discuss restructuring options with proprietors||Implement crisis stabilisation methods||Advice regarding obtaining finance and the terms of finance|
|Review of critical company contracts||Prepare board documentation||Acting for proprietors in related litigation|
|Plan safe harbour protection for directors||Assess settlement proposals with creditors||Liaising with tax agent|
|Commencement of mediation process between proprietors in dispute||Engagement of external administrators||Advice regarding business strategy|
|Evaluating disputed debt claims||Rectification of transactions at risk of liquidator claw-back||Assistance with developing a turnaround board|
|Evaluation of transactions to consider prospects of liquidator claw-back||Creditor negotiation||Preparation of shareholder’s agreements and key person contracts|
Our points of difference
- Vast experience in dealing with companies in financial distress
- Urgent focus on getting results in crisis situations
- Specialist knowledge of insolvency law and current practice
- Support services including contract preparation, debt recovery and court representation that may be necessary for a restructure to succeed