Causes of business failure in personal insolvency

 Debt Administration, Insolvency Law, Insolvency practices, Insolvency Statistics, Personal Bankruptcy, Phoenix company activity  Comments Off on Causes of business failure in personal insolvency
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 »

All about the Report As To Affairs in corporate insolvency

 ASIC, Corporate Insolvency, Insolvency Law, Insolvency practices, Regulation  Comments Off on All about the Report As To Affairs in corporate insolvency
Jul 112012
 

The corporate regulator may not care much about it but liquidators do, and they want some changes made.

The Report as to Affairs (RATA) is a form which is prepared for the purpose of showing the financial  position of a company at commencement of its entry into liquidation, controllership or  administration.

Between November 2011 and March 2012, and with support from a scholarship administered by the Insolvency Practitioners Association of Australia (IPA),  I carried out extensive research into the RATA, including a random survey of 105 official liquidators.

My research paper is now available from the IPA or from the Centre for Corporate Law and Securities Regulation.

Titled “An Appraisal of the Report as to Affairs”, the paper is a report on the written survey of official liquidators concerning the Report as to Affairs form and associated compliance issues.  The report also examines the history and purpose of the Report as to Affairs, laws which impose duties to submit the form, and ideas for change.

The paper concludes with several recommendations and observations, including the following:

“This survey of liquidators has brought to light substantial criticisms and concerns  about the RATA and a desire for change.  It coincides with moves towards  harmonisation of personal and corporate insolvency regulation, and with the start of  the Personal Property Securities Act, which makes significant changes to priority  rules for secured parties as well as introducing a new vocabulary.  All this suggests  that it’s time the RATA form was revisited and overhauled.    The ASIC should make the RATA the subject of an inquiry through a Consultative  Paper …. The ultimate aims of the consultation would be to produce a new or redesigned form, a  Regulatory Guide to the form, and an information sheet for directors.  The inquiry  should consider, for example, what constitutes an acceptable standard for a RATA –  i.e., when does a professed RATA qualify as a valid RATA – and how the receipt of a  RATA that fails to meet that standard should be handled.”

Appended to the main research report is a supplement which reproduces verbatim all the ideas, suggestions and comments made by liquidators concerning what is wrong with the present RATA and how it could be improved.

Thanks to Professor Ian Ramsay, of Melbourne University, who is Director of the Centre for Corporate Law and Securities Regulation, the full research paper appears in SAI Global Corporate Law Bulletin No. 178.  A copy of the paper (including the annexures) is available as one pdf file from http://cclsr.law.unimelb.edu.au/files/The_RATA_-_research_paper_-_Keenan_-_2012_-_IPA_TTS.pdf

A shortened version of the paper appears in the latest edition of the Australian Insolvency Journal , which is published by the IPA (see Volume 24 Number 2, pages 10 to 23).  The link to that version is  http://www.ipaa.com.au/default.asp?menuid=319&artid=1157

I am indebted to Michael Murray, Legal Director of the IPA, who vetted the research paper and edited the version that appears in the Australian Insolvency Journal.  It was as a result of his enthusiasm and status in insolvency law circles that Professor Ian Ramsay took an interest in the paper and had it published by the Centre for Corporate Law and Securities Regulation. Michael has also forwarded the paper to the ASIC, ITSA and relevant government departments.

Free Excel template: corporate insolvency Report as to Affairs (Form 507)

 ASIC, Forms, Insolvency practices, Regulation, Templates  Comments Off on Free Excel template: corporate insolvency Report as to Affairs (Form 507)
Aug 162011
 

I have created –  in Microsoft Excel format – the current  Australian statutory companies Report as to Affairs form.  It is  free to download and/or view from my website.  Click  HERE for the forms page and look for Form 507, MS Excel version.

Big rise in bankruptcy penalty

 Insolvency practices, Offences, Personal Bankruptcy, White collar crime  Comments Off on Big rise in bankruptcy penalty
May 192011
 

A crucial instrument of insolvency administration is a properly prepared and sworn statement of affairs made out by the proprietors of the insolvent business enterprise. 

This fact was recently granted further recognition in Australia’s  bankruptcy (personal insolvency) laws when the Federal Government ramped up the penalty for bankrupts who fail to make out a statement of affairs. [S.54(1) of the Bankruptcy Act 1966]  

 The penalty was increased fivefold or 500%. 

In recommending the Bankruptcy Legislation Amendment Bill 2010 – which was supported by  the Government and the Opposition –  the Attorney-General, Mr McClelland, said:

“Importantly, the bill also provides trustees with stronger powers to obtain a statement of affairs from a bankrupt who fails to file this as required. The statement of affairs is the most important information required by a trustee to commence administering the bankrupt’s estate. Failure to comply with the requirement to file a statement of affairs significantly frustrates the trustee’s ability to administer the estate in a timely way. Failure to provide a statement of affairs often results in a trustee expending additional time and expenses to identify a debtor’s assets, income and liability. This in turn can diminish a bankrupt’s estate and returns to creditors.” [Second reading speech]

Simultaneously the government  introduced a new power for the Official Receiver in Bankruptcy to compel a bankrupt to provide a statement of affairs [Section 77CA].  If the bankrupt fails again to comply after having had the obligation under Section 54 (1) brought to his or her attention by the Official Receiver, the bankrupt will have committed a further and more serious offence, the penalty for which is imprisonment for 12 months [Section 267B].

These laws  became effective on 1 December 2010.  To see the Official Receiver’s Practice Statement 10 titled “Filing of a Statement and issue of 77CA notices by the Official Receiver” CLICK HERE.