Dec 042015
 

The Senate Economics References Committee has criticised the contempt that some directors show for company laws, the “mild” consequences of non-compliance and the low likelihood that unlawful conduct will be detected.

In its report “Insolvency in the Australian construction industry: I just want to be paid” – published 3 December 2015 – the Senate Committee states:

The committee considers that the estimates of the incidence of illegal phoenix activity detailed in this report suggest that construction industry is being beset by a growing culture among some company directors of disregard for the corporations law. This view is reinforced by the anecdotal evidence received by the committee which indicates that phoenixing is considered by some in the industry as merely the way business is done in order to make a profit.

The committee is particularly concerned at evidence that a culture has developed in sections of the industry in which some company directors consider compliance with the corporations law to be optional, because the consequences of non-compliance are so mild and the likelihood that unlawful conduct will be detected is so low.

This culture is reflected in the number of external administrator reports indicating possible breaches of civil and criminal misconduct by company directors in the construction industry. Over three thousand possible cases of civil misconduct and nearly 250 possible criminal offences under the Corporations Act 2001 were reported in a single year in the construction industry. This is a matter for serious concern. It suggests an industry in which company directors’ contempt for the rule of law is becoming all too common.

[from Executive summary, Phoenixing (page xix) and paragraph 5.100 (page 87)]
Continue reading »

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ASIC winds up more abandoned companies to help employees

 ASIC, Corporate Insolvency, External administration, Insolvency Statistics  Comments Off on ASIC winds up more abandoned companies to help employees
Oct 262015
 

Some directors of insolvent companies abandon their companies rather than adopt the proper course, which is to put the company through formal liquidation under the Corporations Act.

The Australian Securities and Investments Commission (ASIC) recently (21 October 2015) published a list of the latest abandoned companies that it has placed in liquidation under the special powers provided in section 489EA of the Corporations Act 2001. This brings to 60 the total of such company liquidations.

Were it not for special powers given to ASIC, abandonment of a company would cause employees who had not been paid their wages, leave and other entitlements to miss out on the compensation administered through the Australian Government’s Fair Entitlements Guarantee scheme (FEG), because such financial assistance is only available to employees of businesses that have gone into liquidation (or bankruptcy in the case of non-corporate employers). So putting an abandoned company into liquidation gives unpaid employees access to the FEG compensation. Unpaid employees of an abandoned companies can submit a request to ASIC to wind up the company.

The latest group of 10 abandoned companies owed at least 15 employees a total in excess of $429,000 in employee entitlements. They are:

LATEST LIST OF ABANDONED COMPANIES
Source: ASIC Media Release 15-305MR, 21-10-2015

Company Name

State

Adelaide Commercial Furniture Pty Ltd SA
JBKM Ventures Pty Ltd QLD
New Energy Technologies Pty Ltd NSW
Rifam Pty Ltd VIC
Let it Rain Pty Ltd NSW
Focus on Training Pty Ltd VIC
YQ Trading Pty Ltd NSW
Parklane Building Corporation Pty Ltd NSW
Sureline Training Services Pty Ltd WA
Australian Veterinary Hospitals (South Australia) Pty Ltd NSW

Apart from the names of the liquidators appointed, this is the only information supplied by ASIC. (The “corporate veil”, or something like it, seems to require that the identity of the company directors be kept confidential.)

As to the costs per company, ASIC said in January 2013:

“The cost of taking winding-up action is generally estimated to be about $15,000. This figure comprises ASIC’s costs and the liquidator’s remuneration.” (Reg Guide 242)

One can only hope that the liquidators are recovering company assets to pay the liquidation costs, or that the directors are penalised in some way for making taxpayers foot the bill.

The 60 abandoned companies wound up by ASIC since 2013 owed a total of 213 employees more than $2.9 million in entitlements.

END OF POST

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Aug 132015
 

What reasons are given for the failure and insolvency of non-corporate businesses, i.e., those owned by individuals as sole traders or in partnership? Is there any alignment between the reasons given for non-corporate business failures and the reasons given for corporate failures? And where a non-corporate (aka personal) business  insolvency has been brought about by the phoenix scheme of a corporate customer or client, is this made known to the regulator for statistical purposes?

This article is an extension of the discussion in my post  “Confusing causes of corporate insolvency”. Continue reading »

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Jun 192015
 

(19/6/2015) A lively public hearing before the Senate Committee looking into insolvency in the Australian construction industry has been told by several speakers that sub-contractors should be protected by requiring head contractors to place money in trust funds. The Committee also heard about debt collection methods, outlaw bikie gangs and new allegations concerning events leading up to the collapse of Walton Construction in October 2013.

Those appearing before the Committee on 12 June 2015 included Mr Dave Noonan, National Secretary of the Construction and General Division, Construction, Forestry, Mining and Energy Union (CFMEU), representatives of the Subcontractors Alliance, Project Resources, Masonry Contractors Association of NSW, EcoClassic Group Pty Ltd and Erincole Building Services Pty Ltd.

MORE TO COME: At the close of the day Senator Cameron said: “Chair, there might be other issues once we have a look at the Hansard. We might need to get some of this group back again further on. This inquiry is going to run for a bit of time yet, so we will need to have a look, see what you said and come back.”

The official Hansard transcript of the hearing on 12 June 2015 was recently published on the Parliament’s website. A PDF copy of the 56 page transcript may be downloaded from that site by clicking here.

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ASIC publishes an overview of statistics and offences reported by liquidators

 ASIC, Corporate Insolvency, Insolvency Statistics, Offences, Regulation  Comments Off on ASIC publishes an overview of statistics and offences reported by liquidators
Sep 302014
 

In the 2013–14 financial year, 7,218 reports alleging misconduct were lodged with ASIC by external administrators.

That’s one statistic contained in “Insolvency statistics: External administrators’ reports (July 2013 to June 2014)”, a report by the Australian Securities and Investments Commission (ASIC). The report (Report 412) is the latest data from ASIC on liquidations and other forms of external administrations.

ASIC Media Release

The following is from ASIC’s media release of 29 September 2014:

Report 412 Insolvency statistics: External administrators’ reports (July 2013 to June 2014) (REP 412) is ASIC’s sixth report and provides information on the nature of corporate insolvencies, supplementing the monthly and quarterly statistics that ASIC publishes on its website.

The report summarises information from 10,073 reports received during the 2013–14 financial year and includes ASIC’s response to reports of alleged misconduct from external administrators.

Commissioner John Price acknowledged the work of external administrators in carrying out their investigations and reporting to ASIC.

‘External administrators’ reports are a critical source of intelligence for ASIC. In addition to providing more detailed qualitative data, the information obtained from reports helps ASIC focus its regulatory efforts. It also helps us assess whether enforcement action is warranted, or if a director banning action should be pursued.

‘We encourage external administrators to provide these reports and any allegations of misconduct in a timely manner to assist in our supervision of insolvency and corporate governance issues,’ Mr Price said.

Profile of insolvent companies

REP 412 includes information about the profile of companies placed into external administration, including:
•industry types
•employee numbers
•causes of company failure
•estimated number and value of a company’s unsecured creditor debts, and
•estimated dividends to unsecured creditors.

Table 1 summarises key data from the report.

REP 412 shows small to medium size corporate insolvencies again dominated external administrators’ reports. Of note, 86% had assets of $100,000 or less, 81% had less than 20 employees and 43% had liabilities of $250,000 (or less).

97% of creditors in this group received between 0–11 cents in the dollar, reflecting the asset/liability profile of small to medium size corporate insolvencies.

Allegations of misconduct

REP 412 details how often external administrators report alleged misconduct by company officers and the types of alleged misconduct most frequently reported.

In the 2013–14 financial year, 7,218 reports alleging misconduct were lodged with ASIC by external administrators.

ASIC asked external administrators to prepare 802 supplementary reports where external administrators alleged company officer misconduct. This accounted for 11.1% of all reports, which alleged misconduct, lodged in the financial year.

Supplementary reports are typically detailed, free-format reports, which set out the results of the external administrator’s inquiries and the evidence they have to support alleged offences. Generally, ASIC can determine whether to commence a formal investigation on the basis of a supplementary report. While only a portion of the offences reported may result in a formal investigation or surveillance, ASIC uses the information for broader intelligence and targeting purposes.
In both the 2012–13 and 2013–14 financial years, after assessment, ASIC referred 25% and 19% of these cases respectively for investigation or surveillance.

ASIC considers a range of factors when deciding to investigate and take enforcement action and this is detailed in Information Sheet 151 ASIC’s approach to enforcement (INFO 151).

Future improvements: Reporting of alleged insolvent trading and other offences

To assist external administrators in their reporting obligations, ASIC anticipates releasing an amended report template for external administrators (Form EX01) in early-2015.

The amendments aim to capture more accurate information on alleged insolvent trading offences which might provide greater insight into the extent of insolvent trading and enable ASIC to focus our resources on matters that warrant further investigation.

The revised form is a further ASIC initiative to collect better information on corporate insolvencies in Australia. It complements recent enhancements to other forms to capture data in electronic format such as:
•industry statistics for external administration appointments from Form 505 (notice of appointment)
•key information from deeds of company arrangement from an enhanced Form 5047, and
•key financial data from Form 524 (presentation of accounts and statement).

ASIC expects to continue our work with industry to improve reporting including on other offences, such as alleged breaches of director duties.

The full Report 412 is available for download in PDF format from ASIC.

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May 152014
 

Since mid-2012, when the Australian Securities and Investments Commission (ASIC) was given the power to wind up companies that met certain criteria, ASIC has ordered the winding up of 19 companies.
 
In its media releases ASIC has estimated that those 19 companies have over $1.5 million in unpaid employee entitlements (wages, leave, etc.) owing to 100 workers.
 
As a result of the companies being wound up, those workers will be entitled to claim payment of their entitlements from the Fair Entitlements Guarantee (FEG) scheme administered by the Department of Employment.
 
The following chart lists the 19 “abandoned companies” wound up by ASIC. They are called “abandoned” because ASIC believes they are no longer carrying on business and that their directors have effectively walked away from them and their debts. abandon-companies

Background:

 
In July 2012 ASIC was given the power to order the winding up of a company in certain circumstances [Part 5.4C of the Corporations Act 2001] [Section 489EA]. In the lead up to this legislation the phrase “abandoned companies” was coined to describe such companies. Shortly after obtaining these powers ASIC decided that its primary consideration when exercising its discretion would be whether ordering the winding up of a company would facilitate employee access to funds from the government’s General Employee Entitlements Scheme (GEERS), since replaced by the Fair Entitlement Guarantee scheme (FEG). [ASIC Consultation Paper 180]. This objective had been the main reason behind introduction of the new law, which was part of the Gillard Government’s  Protecting Workers’ Entitlements package of April 2012.  A precondition for an employee of a company receiving a payment from GEERS/FEG is that the company be placed into liquidation.

Links:

ASIC media release 13-233MR “Workers to gain access to entitlements after ASIC employs new powers”  27 August 2013 ASIC media release 14-097MR ” ASIC wind-up actions enable access to employee entitlements”  6 May 2014


 

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Jan 242014
 

A Federal Government report on compliance by insolvency practitioners who work in the field of personal bankruptcy and insolvency, and are governed under the Bankruptcy Act 1966, was released on 16 January 2014. The 29 page report, published by Australian Financial Security Authority (AFSA), is titled

“Personal insolvency practitioners compliance report 2012-13”.

The phrase “personal insolvency practitioners” refers to Registered Trustees in Bankruptcy and Registered Debt Agreement Administrators.

A list of the CONTENTS is published below. For a copy of the report (PDF) CLICK HERE.

AFSA_contents_1

AFSA_contents_2

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A blip or not? Trends in corporate insolvency statistics part ways.

 ASIC, Corporate Insolvency, Insolvency practices, Insolvency Statistics, Regulation  Comments Off on A blip or not? Trends in corporate insolvency statistics part ways.
Dec 052013
 

For the first time in six years the number of initial investigation reports filed with the Australian Securities and Investments Commission (ASIC) by external administrators has not risen in line with the increase in the number of companies entering external administration.

There could be several reasons for this variation, or it may simply be a blip. Next year’s statistics will be interesting.

The chart below, prepared exclusively for this blog using ASIC statistics, compares the trends from 2007/08 to 2012/13 in the numbers of  corporate insolvency appointments, companies entering external administration and Schedule B investigation reports filed with ASIC.

Chart-Number-of-insolvencies-ScheduleB-Reports

ASIC does not appear to have commented publicly on the variation.

The following extracts from ASIC’s Report 372 (October 2013) give some general information about Schedule B reports:

“Liquidators, receivers and voluntary administrators (external administrators) must lodge reports under the following sections of the Corporations Act:

(a) s533 (by a liquidator);
(b) s422 (by a receiver); and
(c) s438D (by a voluntary administrator).

External administrators must lodge a report with ASIC as soon as practicable:

(a) when they suspect an offence under an Australian law, or instances of negligence or misconduct relating to the company to which they are appointed; or
(b) in the case of a liquidation only, when unsecured creditors are unlikely to receive more than 50 cents in the dollar dividend.

Changes to the Corporations Act introduced a statutory time limit on the lodgement of a s533(1) report by a liquidator appointed after 31 December 2007. A liquidator must lodge a report as soon as practicable and, in any event, within six months after it so appears to the liquidator that any of the conditions in s533(1)(a), (b) or (c) apply. No statutory time limit was introduced under s422 or 438D.”

…………………….

“The statistics in this report (on Schedule B investigation reports) do not directly correlate with the monthly statistics for ‘Companies entering external administration’ and ‘Insolvency appointments’ on ASIC’s website due to the time difference in lodgement of external administrators’ reports …. External administrators are not required to lodge reports where the pre-conditions of s422, 438D or 533 of the Corporations Act are not met.”

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Insolvency statistics: Reports to corporate regulator by liquidators: trend in insolvency deficiencies

 ASIC, Corporate Insolvency, Insolvency practices, Insolvency Statistics, Regulation  Comments Off on Insolvency statistics: Reports to corporate regulator by liquidators: trend in insolvency deficiencies
Nov 252013
 

This chart, prepared exclusively for this blog, shows the trend in the number of Schedule B investigation reports filed with the Australian Securities and Investments Commission (ASIC) by external administrators of insolvent corporations from 2007/08 to 2012/13 and the trend in the estimated minimum deficiency that all these corporations, taken together, are said to have incurred.

The primary data has been published by ASIC in annual reports titled, “Insolvency statistics: External administrators’ reports”. 

 

Chart-ScheduleB-Reports-ASIC-Deficiencies_small

My analysis shows that during 2012/13 the external administrators who filed Schedule B reports electronically reported deficiencies which, taken together, total an estimated minimum of $7.8 billion spread over 9,254 companies. This compares with deficiencies totalling at least $7.3 billion spread over 10,074 companies in 2011/12, and deficiencies totalling at least $6.1 billion spread over 8,054 companies in 2010/11.  A deficiency is the amount by which liabilities owing by a company exceeds the value of its assets.  In other words, it is the amount that creditors are expected to lose.

When completing the initial external administrator report (Schedule B), the external administrator selects from a predetermined set of options for qualitative questions, and ranges for quantitative questions. There are over 30 questions on the form.

One of those questions requires the external administrator to make an estimate of the company’s deficiency and report the result by selecting the range into which it falls. For this question there are seven ranges specified by ASIC. All ranges (except the top) have both minimum and maximum amounts. For the purposes of this analysis I have taken a conservative approach and used the bottom of the range. For example, where 2,473 companies are reported to have an estimated deficiencies in the range $50,001 to $250,000, I have used a total deficiency for that range of $123,652,473, i.e., 2,473 by $50,001. The same principal has been applied throughout my calculations. The total estimated deficiency in this chart is, therefore, the minimum or bottom of the range.

Of its compilation reports  – the latest of which is Report 372 – ASIC says they have been “compiled from the estimates and opinions contained in statutory reports lodged with ASIC by liquidators, receivers and voluntary administrators (external administrators’ reports) in the format of Schedule B to Regulatory Guide 16 External administrators: Reporting and lodging (RG 16) (Schedule B report).”

In its Disclaimer ASIC says: “In compiling the statistics in this report, ASIC has relied on the information in the external administrators’ reports lodged electronically with ASIC. Other than as discussed in Section B of this report, ASIC has not verified or sought to confirm the accuracy of any information in the external administrators’ reports lodged electronically. Accordingly, the statistics in this report cannot be construed or relied on as representing a complete and accurate depiction or statement about the matters or events to which the statistics relate.”

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Jul 262013
 

An Enforcement Outcomes report has been issued by the Australian Securities and Investments Commission (ASIC) for the six months from January to June 2013 (Report 360).

It is the fourth of its type since ASIC abandoned its Prosecution Reports. But unlike those reports – upon which I based my paper, “Convictions for summary insolvency offences committed by company directors” , a detailed comparison of prosecution outcomes over the years 2006 to 2010, including the sections of the Corporations Act under which enforcement action was taken and the fines imposed – the new Enforcement Outcomes reports provide far less information.

In the part of the  latest Enforcement Outcomes report that mentions summary insolvency offences, the reader is simply told that:

“As part of our liquidator assistance program, 249 directors were successfully prosecuted for summary offences concerning a failure to assist an external administrator.” (paragraph 86)

Similar brief references are made in the three previous reports.

So what, if anything, do these limited figures say?

About all we can do is compare the latest figure with those from the previous 18 month period.

In the six months  from July to December 2012 the comparative number of directors successfully prosecuted under the liquidator assistance program was 275. (Report 336, paragraph 91.)

Further comparisons with the two earlier Enforcement Outcomes reports might not be all that meaningful, because those reports give figures on summary “proceedings against” directors rather than the current classification of “successful prosecutions” against directors.  That said, the reports for the six months to June 2012 and for the first six months (to December 2011), put the figures at 196 and 208 respectively  (see Report 299, paragraph 48 and Report 281, paragraph 39 )

But according to ASIC, readers need to be cautious when making comparisons of such data. The Enforcement Outcomes report 360 states (at paragraph 18):

“Comparisons between individual enforcement reports have some limitations. This is because no two enforcement actions are the same. For example, there may be differences in the complexity or seriousness of the allegations. However, over a two-year period, it is possible to identify the types of conduct or sectors that are the focus of ASIC’s enforcement activity in the longer term.”

This statement – minus the final sentence – was also used in the Media Release that accompanied the report.

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