In a winding up, it is the duty of the liquidator to realise all assets of the company. This includes outstanding loans to shareholders and directors. In this article, we explain what happens to some of these loans — loans that comply with Division 7A of the Income Tax Assessment Act 1936 (Cth) — in the winding up of a company.
In Australia, the Australian Securities & Investments Commission (ASIC) is the government body in charge of regulating liquidators and other aspects of the insolvency process. Here we examine ASIC’s role in detail and compare it with the approach taken across the Tasman.
The winding up or liquidation of a company means realising the assets of the business and distributing the proceeds to unsecured creditors. The problem: some portion of the business’ total value is always lost in an insolvent liquidation.
Businesses can struggle or fail in different ways. Consider an unprofitable transport business that hasn’t been able to put up rates in 20 years due to stiff competition. Or, consider the same type of business, where its unprofitability is caused by the inability to pay debts entered into by prior directors.
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.
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.