Directors get a safe harbour for insolvent trading

 ASIC, Corporate Insolvency, Insolvency Law, Regulation, White collar crime  Comments Off on Directors get a safe harbour for insolvent trading
Sep 202017
 

Ship entering harbour

 

From 18 September 2017 company directors will be able to seek shelter from liability for insolvent trading.

Previously, a director who caused a company to incur new debts (e.g., obtain goods and services on credit) at a time when the company was unable to pay its existing debts/liabilities, could – if the company was subsequently placed in liquidation –  be sued by the liquidator or by the creditor provider.

Now, the laws will “protect a director in relation to debts that a company incurs directly or indirectly  in connection with developing and taking a course of action that is reasonably likely to lead to a better outcome for the company than proceeding immediately to voluntary administration or winding up.” [Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017, Explanatory Memorandum, paragraph 1.32]

For the full history of this legislation – which encompasses “Safe Harbour for Insolvent Trading” laws and “ipso facto” clauses – and to see a discussion of the key issues (35 pages in all), click on this link: Parliamentary Library’s Bills Digest No. 33 of 11 September 2017.

TO BE CONTINUED …

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 »

Nov 122015
 

Transcripts have now been published for all of the public hearings of the Senate inquiry into insolvencies in construction industry. Phoenixing of companies is the main topic discussed. Several insolvency practitioners have given evidence, and at the hearing in Sydney on 28th September the insolvency profession was criticised by the leading participant, Senator Doug Cameron. At the public hearing in Melbourne on 29th September the Walton Constructions case was discussed in detail by the insolvency practitioners initially appointed as external administrators.

A list of the public hearings and those who appeared as witnesses is provided below. Continue reading »

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.

Oct 252013
 

The Australian Manufacturing Workers’ Union (AMWU) has focused its recent submission to the inquiry by the Australian Senate into “The performance of the Australian Securities and Investments Commission” on the issue of phoenix company activity.

Union logo

The AMWU claims that “ASIC’s failure to adequately hold directors to account has cost millions of dollars worth of unpaid entitlements for employees nationwide. The time is now for action to be taken, impunity to end, and for unscrupulous directors to be held accountable.”

The AMWU submission (21 October 2013) makes four recommendations, namely:

1) Increasing resources and funding to ASIC so that it can properly investigate corporate misbehaviour.

2) A comprehensive review and amendment of s 596AB of the Corporations Act to provide stronger safeguards for employee entitlements and allow for more successful actions by ASIC and liquidators.

3) Introducing a reverse onus procedure by which a director, where there has been an adverse liquidators’ report lodged against them, will be required to ensure that they have acted honestly and responsibly in relation to company affairs.

4) Increasing ASIC’s legislative powers to hold directors and officers personally responsible for unpaid employee entitlements, with a particular focus on phoenix activity.

In expanding on and explaining these recommendations the AMWU says:

1) “ASIC is under-resourced to handle the thousands of complaints submitted to it every year. Regardless of what legislative or regulatory reforms are undertaken, without additionally funding, ASIC will not be able to protect the interests of even the most vulnerable of parties, such as employees. There needs to be a commitment to replace impunity with accountability, and increased resources and funding to ASIC must be the driving force behind this.”

2) “The intention behind s 596AB was to “deter the misuse of company structures … to avoid the payment of amounts to employees that they are entitled to prove for on liquidation of their employer”. This intention has not materialised. Instead, the criticism that s 596AB will prove to be a “toothless tiger… so hard to prove that nobody will be effectively prosecuted” has been proven true. This recommendation would allow for ASIC to, more easily, bring proceedings against directors who have compromised employee entitlements through corporate restructures. This would have a threefold effect of protecting employee entitlements, holding dishonest directors to account, and deterring similar conduct.”

3) “This recommendation is modelled upon Irish legislation under the Companies Act 1990 (Ireland) s 149. In Ireland, where an adverse liquidators’ report has been lodged, directors must ensure that a large amount of equity capital is invested in the new company (at least £100 000 with a minimum of £20 000 paid up in cash) or are required to prove in court why they should not be required to do so. This reverse onus procedure would reduce the detection and compliance burden on ASIC.”

4) “The AMWU submits that continued review of the anti-phoenix activity measures implemented be undertaken, especially in light of the first anniversary of the enactment of the Corporations Amendment (Phoenixing and Other Measures) Act 2012 (Cth).”

In support of its submission the AMWU gives its summary of the following recent cases:

• Steel Tube Pipe Group
• Forgecast Australia Pty Ltd (AMWU v Beynon [2013] FCA 390)
• Carlton Sheet Metal Pty Ltd
• Huon Corporation
• Paragon Printing Ltd

The inquiry by the Senate Standing Committee on Economics began on 20 June 2013. Submissions were to close on 21 October 2013. The Committee is due to report by 31 March 2014.

Parliament debates the proposed new liquidation and “phoenixing” laws

 ASIC, Insolvency Laws, Insolvency practices, Regulation  Comments Off on Parliament debates the proposed new liquidation and “phoenixing” laws
Mar 092012
 

Although it started out with a dream run, the Bill to allow ASIC to order the winding up of companies has been the subject of considerable debate in the House of Representatives.

The government had hoped to get the Corporations Amendment (Phoenixing and Other Measures) Bill 2012 through quickly.  It was introduced in the House on 15 February 2012.  A day later it was referred to the House Standing Committee on Economics.  The Committee met via a telephone conference – which lasted less than a minute – on 21 February 2012 and resolved to discharge the reference.  The Committee issued a statement of explanation on 27 February 2012, saying:

 “….the committee considers that the Bill comprises uncontroversial measures that will assist in curbing the amoral practice of phoenixing.”

The Committee quoted from a briefing issued by the law firm Minter Ellison, which expressed the view that the Bill “contains some reasonable measures for facilitating the protection of workers’ entitlements.  These measures are unlikely to affect the position of the majority of directors.”

But back in the House of Reps heated debate ensued.  A total of seventeen speeches for and against the Bill were made by MPs.  Naturally MPs took the view of their party, but nevertheless the debate did explore many of the issues involved.  Those who spoke were:

 Joe Hockey (LP) (Opposition); Julie Owens (ALP) (Government); Scott Buchholz (LP); Bernie Ripoll (ALP); Paul Fletcher (LP); Gai Brodtmann (ALP); Deb O’Neill (ALP); Steven Ciobo (LP); Sharon Grierson (ALP); Steve Irons (LP); Kelvin Thompson (ALP); Bruce Billson (LP); Mike Symon (ALP); Bert Van Manen (LP); Tony Zappia (ALP); Stuart Robert (LP); David Bradbury (ALP).

All the speeches may be seen at the following  link:

http://parlinfo.aph.gov.au/parlInfo/search/summary/summary.w3p;query=BillId_Phrase%3A%22r4753%22%20Dataset%3Ahansardr,hansards%20Title%3A%22second%20reading%22;rec=0

The main protagonists were David Bradbury (for) and Joe Hockey (against).   The speech on 1 March 2012 by David Bradbury will be found by following this link:

http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/bda27a36-a8b5-4e6a-a64f-6084b2c53511/0059/hansard_frag.pdf;fileType=application%2Fpdf

The speech on 1 March 2012 by Joe Hockey will be found by following this link:

http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/89274c8f-2468-4c73-b7cf-69715d12aa15/0167/hansard_frag.pdf;fileType=application%2Fpdf

 

_______________________________________________________

None of the debate touches on the technical issues that I pondered in my post entitled Questions concerning new power for winding up by ASIC.

Parliament sees new tax laws to protect superannuation and deter phoenix companies

 Insolvency Laws, Regulation, Tax liabilities, Taxation Issues  Comments Off on Parliament sees new tax laws to protect superannuation and deter phoenix companies
Oct 182011
 

On 13 October 2011 the Australian Government presented a bill which the Minister says “amends the tax law to better protect workers’ entitlements to superannuation, strengthen the obligations of company directors and enhance deterrence of fraudulent phoenix activity”.

Schedule 3 of the Tax Laws Amendment (2011 Measures No.8) Bill 2011 is described in the Second Reading speech by the Minister, Mr Bill Shorten, as follows:

“These amendments will provide disincentives for directors to allow their companies to fail to meet their existing obligations, particularly obligations to employees. They do not introduce new obligations on the company but, rather, penalise company directors who are failing to ensure that their companies meet their obligations.

These outcomes are achieved by extending the director penalty regime to superannuation guarantee. This will make directors personally liable for their company’s failure to meet its obligations to pay employee superannuation.

Secondly, this will allow the commissioner to commence recovery against company directors under the director penalty regime without issuing a director penalty notice. This power is limited to situations where the company’s unpaid pay-as-you-go (or PAYG) withholding or superannuation liability remains unpaid and unreported, three months after becoming due.

Thirdly, it is making company directors and, in some limited cases, their associates liable to a tax which, in effect, reverses the economic benefit of a PAYG withholding credit. This tax only applies if directors or their associates are entitled to a credit for amounts that have been withheld from payments made to them by the company and the company has failed to meet its obligation to pay PAYG withholding amounts to the commissioner. Further criteria must be satisfied before associates are liable.

Together, this package of amendments will improve the likelihood that employees will receive the superannuation they are entitled to. It will reduce the ability of directors to avoid paying director penalties for their company’s superannuation guarantee and PAYG withholding debts. Further, it will increase the disincentives for directors to allow their company to fail to meet its existing obligations.”

Introduced with the Pay As You Go Withholding Non-compliance Tax Bill 2011, the bill amends, inter alia, the Taxation Administration Act 1953 to allow the Commissioner of Taxation to commence proceedings to recover director penalties in certain circumstances without issuing a director penalty notice; the Income Tax Assessment Act 1997, Taxation Administration Act 1953 and Taxation (Interest on Overpayments and Early Payments) Act 1983 to make directors and their associates liable to pay as you go withholding non-compliance tax in certain circumstances; and the Corporations Act 2001, Superannuation Guarantee (Administration) Act 1992 and Taxation Administration Act 1953 to make directors personally liable for their company’s unpaid superannuation guarantee amount.

LINKS: 

 Minister’s Second Reading speech on 13/10/2011.

Text of Bill  (See Schedule 3)

Explanatory memoranda  (See Chapter 3)  For a concise comparison of key features of the new law and the current law, see the chart at pages 30 & 31 of the Explanatory Memorandum.

_______________________________________________________

On 18 October 2011 the Treasury published the thirteen submissions it received in response to the consultation on an earlier exposure draft of this legislation. To view these click HERE.

Directors need “a questioning mind” concerning financial statements

 ASIC, Offences, Regulation, Standards, White collar crime  Comments Off on Directors need “a questioning mind” concerning financial statements
Jun 292011
 

The Federal Court judge who decided in favour of the Australian Security and Investments Commission (ASIC) in its case against 8 directors and officers of Centro Properties Limited, Centro Property Trust and Centro Retail Trust regarding the 2006/07 consolidated financial statements, has provided an important summary of the law about a director’s duty in relation to the content of financial statements.

 The following are extracts from the judgement of Middleton, J on 27 June 2011 in Australian Securities and Investments Commission v Healey [2011] FCA 717:

 “The central question in the proceeding has been whether directors of substantial publicly listed entities are required to apply their own minds to, and carry out a careful review of, the proposed financial statements and the proposed directors’ report, to determine that the information they contain is consistent with the director’s knowledge of the company’s affairs, and that they do not omit material matters known to them or material matters that should be known to them.

A director is an essential component of corporate governance.  Each director is placed at the apex of the structure of direction and management of a company.  The higher the office that is held by a person, the greater the responsibility that falls upon him or her.  The role of a director is significant as their actions may have a profound effect on the community, and not just shareholders, employees and creditors.

This proceeding involves taking responsibility for documents effectively signed-off by, approved, or adopted by the directors.  What is required is that such documents, before they are adopted by the directors, be read, understood and focussed upon by each director with the knowledge each director has or should have by virtue of his or her position as a director.  I do not consider this requirement overburdens a director, or as argued before me, would cause the boardrooms of Australia to empty overnight.  Directors are generally well remunerated and hold positions of prestige, and the office of director will continue to attract competent, diligence and intelligent people. 

The case law indicates that there is a core, irreducible requirement of directors to be involved in the management of the company and to take all reasonable steps to be in a position to guide and monitor.  There is a responsibility to read, understand and focus upon the contents of those reports which the law imposes a responsibility upon each director to approve or adopt.

All directors must carefully read and understand financial statements before they form the opinions which are to be expressed in the declaration required by s 295(4).  Such a reading and understanding would require the director to consider whether the financial statements were consistent with his or her own knowledge of the company’s financial position.  This accumulated knowledge arises from a number of responsibilities a director has in carrying out the role and function of a director.  These include the following: a director should acquire at least a rudimentary understanding of the business of the corporation and become familiar with the fundamentals of the business in which the corporation is engaged; a director should keep informed about the activities of the corporation; whilst not required to have a detailed awareness of day-to-day activities, a director should monitor the corporate affairs and policies; a director should maintain familiarity with the financial status of the corporation by a regular review and understanding of financial statements; a director, whilst not an auditor, should still have a questioning mind.

A board should be established which enjoys the varied wisdom, experience and expertise of persons drawn from different commercial backgrounds.  Even so, a director, whatever his or her background, has a duty greater than that of simply representing a particular field of experience or expertise.  A director is not relieved of the duty to pay attention to the company’s affairs which might reasonably be expected to attract inquiry, even outside the area of the director’s expertise.

The words of Pollock J in the case of Francis v United Jersey Bank (1981) 432 A 2d 814, quoted with approval by Clarke and Sheller JJA in Daniels v Anderson (1995) 37 NSWLR 438, make it clear that more than a mere ‘going through the paces’ is required for directors.  As Pollock J noted, a director is not an ornament, but an essential component of corporate governance. 

Nothing I decide in this case should indicate that directors are required to have infinite knowledge or ability.  Directors are entitled to delegate to others the preparation of books and accounts and the carrying on of the day-to-day affairs of the company.  What each director is expected to do is to take a diligent and intelligent interest in the information available to him or her, to understand that information, and apply an enquiring mind to the responsibilities placed upon him or her.  Such a responsibility arises in this proceeding in adopting and approving the financial statements.  Because of their nature and importance, the directors must understand and focus upon the content of financial statements, and if necessary, make further enquiries if matters revealed in these financial statements call for such enquiries. 

No less is required by the objective duty of skill, competence and diligence in the understanding of the financial statements that are to be disclosed to the public as adopted and approved by the directors.

No one suggests that a director should not personally read and consider the financial statements before that director approves or adopts such financial statements.  A reading of the financial statements by the directors is not merely undertaken for the purposes of correcting typographical or grammatical errors or even immaterial errors of arithmetic.  The reading of financial statements by a director is for a higher and more important purpose: to ensure, as far as possible and reasonable, that the information included therein is accurate.  The scrutiny by the directors of the financial statements involves understanding their content.  The director should then bring the information known or available to him or her in the normal discharge of the director’s responsibilities to the task of focussing upon the financial statements.  These are the minimal steps a person in the position of any director would and should take before participating in the approval or adoption of the financial statements and their own directors’ reports.

The omissions in the financial statements the subject of this proceeding were matters that could have been seen as apparent without difficulty upon a focussing by each director, and upon a careful and diligent consideration of the financial statements.  As I have said, the directors were intelligent and experienced men in the corporate world.  Despite the efforts of the legal representatives for the directors in contending otherwise, the basic concepts and financial literacy required by the directors to be in a position to properly question the apparent errors in the financial statements were not complicated.”

The full judgement in Australian Securities and Investments Commission v Healey [2011] FCA 717 may be accessed HERE.

Decline in UK in number of dodgy directors being penalised

 Insolvency Laws, Insolvency Statistics, Offences, Regulation, White collar crime  Comments Off on Decline in UK in number of dodgy directors being penalised
Jan 192011
 

The UK government’s corporate insolvency regulator (the Insolvency Service) investigates too few cases of alleged misconduct by company directors.  

This is the view of the UK’s Association of Business Recovery Professionals (known as “R3”), which represents 97% of the UK’s Insolvency Practitioners.

 In a media release – “Public at risk from ‘dodgy directors’” – on 10 January 2011, R3 (which stands for rescue, recovery, renewal) says  its research shows that:

 “The number of directors disqualified by the government for misconduct, such as fraud, has failed to keep pace with an increased number of reports of potential misconduct.”

 “The percentage of reports taken forward by the Insolvency Service (i.e. disqualifications) has halved from 40% in 2003/4 to 20% in 2009/10.   Fraudulent activity is known to increase during tough economic times.  In 2009/10, insolvency practitioners submitted 7,030 reports on directors’ behaviour which they believed warranted further investigation. However, in that year, only 1,387 cases were concluded by the Insolvency Service.”

 R3’s President Steven Law commented:

“This mechanism is in place to protect the general public and other businesses from dishonest directors. Not punishing directors who are blameworthy sends out a dangerous message to others.”

 To read a copy R3’s media release, go to https://www.r3.org.uk/pressandpublic/default.asp?page=1&i=523&id=548#PressStory

 R3 has published a paper headed “Directors’ Disqualification: Room for improvement”.  It provides some interesting statistics, summarizes actual case studies – of  “cases when directors have not been disqualified despite the insolvency practitioner reporting obvious misconduct” –  and makes 5 recommendations.  A copy is available HERE.