"Defining and Profiling Phoenix Activity (December 2014)"
by Associate Professor Helen Anderson, Professor Ann O’Connell, Professor Ian Ramsay, Associate Professor Michelle Welsh and Hannah Withers of the University of Melbourne Law School and the Monash Business School. "The concept of phoenix activity broadly centres on the idea of a second company, often newly incorporated, arising from the ashes of its failed predecessor where the second company’s controllers and business are essentially the same. It is important to note that phoenix activity can be legal as well as illegal. Legal phoenix activity covers situations where the previous controllers start another similar business when their earlier entity fails in order to rescue its business. Illegal phoenix activity involves similar activities, but the intention is to exploit the corporate form to the detriment of unsecured creditors, including employees and tax authorities. "
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"Worldwide Survey on Taking Security over Personal/Moveable Property and Collateral"
by Interlaw Banking and Finance Special Business Team, March 2015. Extract from Introduction: "Interlaw Ltd., an Elite* global law firm network, is delighted to present this survey of how practices differ across the world when a lender takes security or collateral over moveable property. Terminology can be an issue here - some talk of "security", others of "collateral" or "charge"; some call the assets in question "moveable", others talk of "personal property"; and that's before we bring other languages into consideration. By whatever name called, we're considering taking security for finance over such things as vehicles, plant and equipment, receivables, contractual rights - in other words both tangibles and intangibles, but generally not land and buildings. With the globalisation of commerce and finance, it is of vital importance to lenders and other financiers to understand that the opportunities for taking collateral in their home jurisdictions may not exist in other jurisdictions or indeed that they may be greater in other jurisdictions. While no one can be an expert in all jurisdictions, it will be helpful to have some advance feel for what might be on offer elsewhere. This survey has been prepared by Interlaw Member law firms that participate in the network’s Banking and Finance Special Business Team. It is written in in layman's terms for the finance professional."
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"Phoenix Activity and the Liability of the Advisor" - by Helen Anderson and Linda Haller
[2014] SydLawRw 21; (2014) 36(3) Sydney Law Review 471
Abstract: "This article explores the liability of professional advisors such as lawyers, accountants and insolvency practitioners in giving advice to company directors in relation to fraudulent phoenix activity. It looks at the losses caused by such activity, and the nature and deficiencies of the current regulatory response. The Supreme Court of New South Wales decision in ASIC v Somerville is examined in detail, with questions asked about the utility of this decision in terms of both general deterrence and in providing clear guidance to the legal profession as to what constitutes acceptable advice in the business rescue context. Recommendations are made about ways to improve this situation."
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"AMWU's submission to 2013 Senate Inquiry into the performance of the ASIC, focussing on phoenix activity."
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"ASIC's power to wind up abandoned companies" > ASIC Consultation Paper 180. Issued 12 July 2012.
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"Bankruptcy and Insolvency" > extract from book published by Oxford University Press > June 2011
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| "Directors' Disqualification: Room for Improvement" by the Association of Business Recovery Professionals, United Kingdom > November 2010 |
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| "CRIME STATISTICS ON COMMON INSOLVENCY OFFENCES BY COMPANY OFFICERS" by Peter J Keenan > December 2010 |
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| Action against fraudulent phoenix activity. Australian Taxation Office (ATO) Proposals Paper. Issued November 2009. This discussion paper provides an overview of the problems that fraudulent phoenix activities cause in the collection of tax revenue and other employee entitlements. It then presents a range of proposals for the taxation and corporations laws to address them while at the same time not impacting on legitimate business failures. |
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| Existing mechanisms to address fraudulent phoenix activity in Australia's Corporate Law Regime. This paper was issued in November 2009 as an annexure to the ATO's discussion paper "Action against fraudulent phoenix activity". |
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| Duty to prevent insolvent trading: Guide for directors. ASIC Consultation Paper 124. Issued November 2009. Includes draft regulatory guide that sets out the key principles that ASIC considers directors need to take into account in order to comply with their duty to prevent insolvent trading, and that provide guidelines on how ASIC will assess whether a director has beached his or her duty. |
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Performance Audit - ASIC's Processes for Receiving and Referring for Investigation Statutory Reports of Suspected Breaches of the Corporations Act 2001 The Auditor - General, Audit Report No.18, 2006–07, Australian National Audit Office , 2007.
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| ASIC's Processes for Receiving and Referring for Investigation Statutory Reports of Suspected Breaches of the Corporations Act 2001, Australian National Audit Office, 2006 |
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| Deeds of company arrangement involving a creditors’ trust. ASIC guide for registered liquidators appointed under Part 5.3A. May 2005 |
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| Code of Professional Practice for Insolvency Practitioners (FINAL). The sections of the Code on Remuneration and Independence came into effect on the 31st December 2007. The balance of the Code commenced on 21 May 2008. |
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| Code of Professional Conduct for Insolvency Practitioners. Approved and published by the Insolvency Practitioners Association of Australia on 14 December 2007. Note: This follows the draft code issued in September 2007 (see below). |
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| Draft Code of Professional Conduct for Insolvency Practitioners. Published by the Insolvency Practitioners Association of Australia as a draft for comment (September 2007). Note: Superseded by the Code approved on 14 December, 2007 (see above). |
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| Issues in External Administration. Discussion paper issued by the Australian Government's Corporations and Markets Advisory Committee (CAMAC) in February 2008. |
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| ASIC Statistics on External Administration. An official report compiled from information supplied to ASIC by liquidators in their investigation reports. The report is titled "External administrators: Schedule B statistics 1 July 2004 to 30 June 2007. It was published on 26 June 2008. |
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"Collection Realities For Unsecured Creditors" by Paul Morrow, Business Manager Debt Collection, Australian Taxation Office. [Alternative titles: “The Abolition Of Crown Priority”, or “The Impact On The ATO Of The Voluntary Administration Procedure”] [Note: this transcription was done by Peter Keenan in November 2008. I have had this seminar paper since 1993. I have published the paper because it contains important historical information about the controversial abolition of the Crown/Government priority for taxation debts.]
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| "How to Set Your Retainers and Fees" by Art Italo, 1996. |
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