On 28 February 2023 Ben Sewell of Sewell & Kettle Lawyers was invited to give evidence for the Parliamentary Joint Committee on Corporations and Financial Services’ inquiry into corporate insolvency in Australia. The scope of the inquiry is quite broad,…
The firm is pleased to announce that on 31 March 2023 Ben Sewell of Sewell & Kettle Lawyers was registered as a Restructuring Practitioner by ASIC. Ben is only the second person in Australia to be registered as a Restructuring…
A major contributor to financial distress for small to medium-sized enterprises (SMEs) in Australia is poor budgeting. Here we look at a useful budgeting technique — the ‘three factor’ budget/forecast, and how this can be used by distressed businesses to turn things around and avoid insolvency.
Constructive trusts impact on corporate insolvency and bankruptcy by reducing the pool of assets available for distribution to creditors. Here we define constructive trusts, and look at their application in corporate and personal insolvency.
Recently I was interviewed by Heide Robson, a professional accountant and the founder of the Tax Talk Podcast (www.taxtalks.com.au) about business insolvency in Australia.
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.
Minority shareholders in Australia are generally beholden to the majority shareholders. However, in some cases, minority shareholders of private companies do have recourse available to them. In this blog article, we look at the ‘minority shareholder oppression remedy’ available in section 232 of the Corporations Act 2001 (Cth), and the orders available to the Court in enforcing that remedy.
A dispute between shareholders can derail the small and medium-sized businesses that make up the bulk of the Australian economy. Here we explain how a shareholders agreement can help reduce the risk of serious dispute.
Fast track sales involve the voluntary administrator selling the assets of a business during a voluntary administration, instead of recommending a debt compromise or ‘Deed of Company Arrangement’. While a fast track sale in a voluntary administration is legal, it is relatively uncommon in Australia. Here we explain how fast track sales work, and consider whether they are a desirable feature of Australian insolvency law. If it occurs, company directors may feel betrayed by a voluntary administrator if they are expecting a debt restructure through a ‘Deed of Company Arrangement’.
Recent research gives a figure for voluntary administration of $30-50,000 per appointment for small sized companies. With a Deed of Company Arrangement (DOCA), this price can easily double. The high cost partially reflects the obligations and liabilities of voluntary administrators, but also, perhaps, a tendency of voluntary administrators to ‘pad’ their hours. By racking up more hours with larger companies, it is possible that voluntary administrators are ‘cross-subsidising’ assetless administrations.
Unfortunately the Voluntary Administration process in Australia doesn’t facilitate any downside trading risk during a restructure. The problem discussed is this article is that the voluntary administrator is required to personally bear trading risk and this is a cold shower for any turnaround process.
Australia applies ‘worldwide taxation’ when calculating corporate and personal income tax. This means Australian startups can owe tax in Australia for all their international activities, even where the founder has moved overseas. Here we explain the key tax rules for Australian startups.