Insolvency Resources

Every year thousands of businesses open their doors and commence trading. Many of these businesses will fail in the first few years, some will fail in the years after that, and only a few will prosper and survive in the long term.

One of the roles of an external administrator is the realization of asset in the estate, and this could create a liability under the Capital Gains Tax legislation.

Proving the date of insolvency of a company or a person is usually one of the most difficult and time consuming tasks in any insolvent estate.

Dividends are the logical end to most insolvency appointments, but can also cause a delay in finalizing the estate, due to the need to follow the legal process..

Employees are the creditors most effected on the insolvency of their employer. Their jobs will be at risk, and there is a chance that outstanding entitlements will never be recovered..

The introduction of GST added some extra tax obligations to both taxpayers and insolvency practitioners appointed to those taxpayers.

Secured creditors usually rely on their securities to satisfy their debts. But at times they will also wish to lodge a proof of debt in the insolvent estate.

A public examination is the common name given to the process of an external administrator formally examining parties. Both the Corporations Act and the Bankruptcy Act have provisions to conduct these types of examinations.

The alternative to a discharge from bankruptcy is to have the bankruptcy annulled. Discharge and annulment do not have the same legal result.

Trustees realize the assets of the bankrupt and distribute the proceeds to the bankrupt's creditors. This paper looks at which of the bankrupt's assets are available to the trustee.

The doctrine applies in cases where a number of people borrow money that is secured against a jointly owned property, but only where the borrowed money is for the sole purpose and benefit of only one or some of the parties.

It is also reasonable that a bankrupt contribute some of their income earned during their bankruptcy to the estate to benefit their creditors.

The Bankruptcy Act dictates how meetings of creditors must be called and conducted. It is the forum for creditors to make statements and ask questions about the conduct of the estate.

There are times when it would be in the interest of the estate that the bankrupt not be discharged at the end of the statutory three year period.

Part IX is the one of the parts of the Bankruptcy Act which allow debtors to make arrangements with their creditors to resolve debt issues, without the debtor being made bankrupt.

Financially distressed people may be able to avoid bankruptcy. Sometimes it is commercially beneficial to creditors if the debtor does not become bankrupt.

Trustees of bankrupt estates sometimes seek to recover payments made by the bankrupt to a creditor, when that creditor received a preference or advantage over other creditors.

Sometimes a bankrupt will be able to make a proposal to satisfy creditors' debt during their bankruptcy.

The provisions set out in this paper give the trustee the power to recover monies paid to eligible superannuation plans in the period before the bankruptcy.

Trustees investigate transactions entered into by the bankrupt when they believe the transaction removed assets from the trustee's control.

588FH allows liquidators to recover monies from related entities where an unfair preference has been made to a third party creditor and a related party is released from an obligation to that creditor.

Since June 1993 the ATO has had the power to collect outstanding deducted taxes (now deducted amounts under the PAYG provisions) by making directors liable for a ?penalty? in the same amount as the unpaid tax.

Liquidators will investigate transactions when they believe that it was detrimental to the company, particularly when they involve directors of the company.

Directors may become liable to pay compensation in the amount of the unpaid debts if they were incurred when the company was insolvent.

This provision is designed to protect employee entitlements, or more correctly allow recovery of an amount - as compensation - from the directors of the company if their actions disadvantaged employees by reducing the assets that could be used to pay priority employee entitlements.

It is often necessary to call meetings of creditors when companies are under external administration. They can be called at a variety of times and for a variety of reasons.

Solvent companies sometimes reach the end of their useful lives and the members (the shareholders) may wish to end their existence.

Liquidators frequently find securities covering some or all of the company's assets. These securities must be examined to ensure that they are not void.

Liquidators will investigate transactions when they believe that it was either not beneficial to, or was detrimental to, the company.

Liquidators seek to recover payments to a creditor when the payment gave that creditor a preference or advantage over other creditors.