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.
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.
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.
Liquidators have a set of powers under the Corporations Act 2001 (Cth) (the Act) known as ‘voidable transactions’ (sometimes also known as ‘avoidance provisions’), which allow the liquidator to ‘claw back’ certain transactions in the case of an insolvent winding-up.
In insolvency, a liquidator sometimes seeks to recover money from a creditor on the grounds that the creditor has received an ‘unfair preference’ in a payment from the debtor company. Here we explain how the ‘running account’ principle can be used by a creditor to push back against a liquidator’s claim of unfair preference.
What happens when a corporate trustee of a trading trust goes into liquidation? Here we look at the current state of the law and the uncertainty around the power of liquidators in this situation.
In this article, we look at the definition of ‘unfair preference’ claims — a mechanism used by liquidators to claw back some prior payments to creditors. We also look at the available defences for an unfair preference claim, and how the new ‘simplified liquidation’ procedure for small businesses deals with unfair preference claims.
In article: Summary: the ROCAP targets phoenix activity Starting in 2018, there have been new reporting requirements in place for companies that are going through an ‘external administration’ process (i.e. where a receiver or liquidator has been appointed). Directors and…
Pursuant to section 459C(2) of the Act, an application to wind up a company in insolvency must be done within 3 months of the date that a company is presumed to be insolvent.
The case of ASIC v Plymin is significant for lawyers because it sets out a list of indicators that can help us understand when a company will be found to be insolvent. The general rule in law is that company insolvency is proven by a cash-flow test not a balance sheet test.
Whenever a business considers lending money or selling goods it should consider whether it might be worthwhile to protect that lending with a personal property security, such as a PMSI. This will place the business in a much better position if the debtor goes bust. However, if you are creditor (or former creditor) and end up receiving a demand from a liquidator relating to an unfair preference, don’t despair.