Australian liquidators: For my free guide on final meetings and finalisation of a creditors’ voluntary liquidation, go to http://insolvencyresources.com.au/Checklists/checcvolliqFinaMeet_v3.pdf
Any suggestions for change or improvement are welcome.
With the necessary approval, a liquidator may legally destroy his or her records of a winding up soon after it is finalised. The same is true of books and records of the liquidated company. (See section 542 of the Corporations Act 2001 “the Act”.)
In the case of a creditors’ voluntary winding up approval must be obtained from creditors and then the Australian Securities and Investments Commission (ASIC). In a winding up by the Court approval must be obtained from the Court.
The provisions in the Act for early destruction make sense. Or at least they do in so far as they pertain to the books and records of the liquidated company that exist at the commencement of the winding up. At that stage a company may have a vast collection of books and records. Without special laws a liquidator would be required to store them for 5 years after the company ceased to exist. Multiply this cost by the many administrations that a liquidator may have and the sum becomes exorbitant, and needlessly so.
But in the case of books and records created subsequent to commencement of the winding up, the argument for early destruction is much weaker, particularly now that society seems to be demanding that liquidators be more accountable and more closely supervised. (For example, see the Australian Senate Committee Report: “The regulation, registration and remuneration of insolvency practitioners in Australia: the case for a new framework“, September 2010.)
(This aspect of the law in relation to retaining books is discussed in my earlier article headed: “Retaining books and records post liquidation”.)
Nonetheless, the main purpose of this article is to draw the attention of liquidators to an application form that I have prepared for use in applying for early destruction of books in a creditors’ voluntary liquidation. (There is no statutory form for an application.)
My standard form may be found at:
www.insolvencyresources.com.au/CvoliqPractPack.htm
Before applying to ASIC a resolution approving/directing the early destruction must be passed by creditors, either through the committee of inspection – if there is one – or at a meeting of creditors. This is usually a standard item on the agenda at the first or second meeting.
ASIC’s Regulatory Guide 81 (RG 81) sets out what information the application must contain. A little less information is required if the application is made after the company is deregistered. But an application can be made before deregistration and even up to 2 months before the final meeting of members and creditors.
Essentially the application requires the liquidator to supply a copy of the committee or creditors’ resolution and to state that:
Presumably if there are circumstances which exist in relation to the company or an associate which may result in the books being required within 5 years of the company’s deregistration, a liquidator who, nevertheless, wants permission to destroy the books would have to present a submission to ASIC for its consideration.
Is it time for a “Guideline for Record Retention and Disposal” in corporate insolvency administration?
In Australia the insolvency practitioners association (the IPAA) has a Code of Professional Practice (COPP) of over 100 pages. A lot of it refers to the importance of maintaining proper records, especially for calculating fees and documenting proceedings at meetings of creditors. But there is no discussion or recommendation about what to do with books and records after the insolvency appointment ends.
The corporations law requires that books and records be retained for 5 years from the date of a company’s deregistration. However, when a company has been wound up under a creditors’ voluntary winding up, and creditors have directed that the books and records may be destroyed within those 5 years, the law permits early destruction in accordance with that direction provided the Australian Securities and Investments Commission (ASIC) gives its consent. [Corporations Act 2001, sec. 542]
Naturally, the IPAA expects insolvency administrators to comply with the law. But the insolvency law is dangerously imprecise because it lumps together the “books of the company and of the liquidator”.
Insolvency practitiones should be asking themselves what they should regard as the meaning of the phrase “all books of the company and of the liquidator that are relevant to affairs of the company at or subsequent to the commencement of the winding up” . [sec. 542(1)] [emphasis added]
If there are practitioners who believe that once early destruction has been officially authorised by ASIC, this wording gives them carte blanche to destroy every record to do with the liquidation as soon as the shortened period has ended, a few words from the IPAA about exercising caution and prudence might be worthwhile.
In my view, if a shortened period for retention of the books and records is authorised – and that period is less than, say, 3 years – practitioners should nevertheless retain the “core” books and records of the liquidation for a longer period .
In deciding what are the “core” books and records, the liquidator should take into account particular events and problems occurring during the liquidation, and bear in mind the normal professional responsibility to possess evidence supporting transactions and justifying decisions.
Such core books and records may include:
By not pointing out to insolvency practitioners the dangers present in early indiscriminate destruction, the IPAA may be doing the profession a disservice by leaving its membership vulnerable to accusations of questionable or unprofessional behaviour.
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