Company phoenixing or ‘phoenixing’ occurs where, the primary controllers of a failed company conducts the same type of business while using some or all of the former company’s assets.
When is Company Phoenixing illegal?
Despite the adverse stigma that is most commonly associated with ‘Phoenixing’, there are circumstances in which it can be legal. There are many examples and success stories where a person has revived the business previously conducted after the financially distressed company enters liquidation and its remaining assets are distributed to creditors.
However, such activity is illegal when this attempted resurrection comes before creditors are paid and where the use of the former company’s assets was uncommercial.
For example, John realizes that ‘John’s Farms Pty Ltd’ cannot pay its debts as and when they fall due. John therefore decides to transfer the company’s assets to the newly-incorporated ‘Johnno’s Farming Pty Ltd’ for little to no value before putting John’s Farms Pty Ltd into liquidation. In this way, John has avoided paying the creditors of John’s Farms Pty Ltd, and has not legally “phoenixed” from the old entity to the new entity.
The Impact of Company Phoenixing
Company phoenixing affects many trades and industries, and sadly, appears to be on the rise.
In 2012, phoenix activity was estimated by Price Waterhouse Coopers and the Fair Work Ombudsman to have costed the Australian Economy between $1.8 to $3.2 billion annually. A second report in July 2018 indicated that this figure could now be as high as $5.13 billion per year.
Unpaid trade creditors seem to suffer the most, making up approximately 61.8% of this figure, whereas unpaid employee entitlements are approximately 5.8% and unpaid taxes and compliance costs are approximately 32.3%.
What is being done about company phoenixing it?
Early in 2019, the Treasury Laws Amendment (Combating Illegal Phoenixing) Bill 2019 was introduced (but had not been passed into law prior to the Federal Election in May 2019). In summary, the Bill purports to:
amend the Corporations Act 2001 (Cth) by introducing new criminal offences and civil penalty provisions for officers who fail to prevent a company from making ‘creditor-defeating dispositions’;
Empower Liquidators in allowing them to apply for court orders in relation to voidable, creditor-defeating dispositions;
Enable ASIC to make orders for the recovery of company property disposed of under such a disposition; and
Improve the accountability of resigning directors so as to prevent companies being left rudderless.
Further, individuals who engage in “illegal phoenixing” can expect to receive a fine of up to $945,000.00 or imprisonment of 10 years for contravening these provisions whereas body corporates can expect to receive penalties of either $9.45 million or 10% of the entity’s annual turnover.
What you can do about phoenixing
Even if these measures are implemented, it is important for you to proactively assess a company’s circumstance.
As an employee, it is important to look for warning signs such as late payment or non-payment of wages, unpaid superannuation and entitlements.
As a creditor, one should be aware of late payment or non-payment of invoices which may indicate financial distress, as well as changes to company details.
Noting that officers of the company have certain duties under the Corporations Act 2001 (Cth), it is important to monitor the financial health of the corporation and ensure that decisions are made in accordance with key duties.
Often, the best way to ensure that your rights and obligations are being met is to seek advice.
How can we help?
Rostron Carlyle Rojas Lawyers are well appraised in the field of corporate law and are able to assist companies, company officers, creditors and employees in ensuring the discharge of their duties and protection of their rights. If you or someone you know requires further assistance, please do not hesitate to contact our Corporate Lawyers on (07) 3009 8444 or email us at firstname.lastname@example.org.
Please note that this article has been prepared by Kishen Bhoola, Lawyer and settled by Sarina Mari Alwi, Senior Associate of Rostron Carlyle Rojas Lawyers. Its contents are for general information purposes only and does not by any means constitute legal advice, nor should it be relied upon.
With effect from 19 September 2017, the safe harbour reform came into effect, reflected in Section 588GA of the Corporations Act 2001 (Cth) (the Act). The practical effect of the reform was to encourage the turnaround culture of companies through innovation and strategic management instead of companies prematurely appointing a voluntary administrator.
What is a Safe Harbour?
The Act now provides an avenue for company directors to take steps against being held personally liable for a company’s inability to comply with their financial commitments. Section 588GA of the Act (the Safe Harbour Reform) provides that a director is not subject to an insolvent trading claim provided that upon suspecting that the company may become or is insolvent, they develop and implement one or more courses of action that are reasonably likely to lead to a better outcome for the company.
What are the requirements for the Safe Harbour Reform?
To determine what an appropriate course of action is, the Act provides a number of examples a Court is to consider in determining whether a director has in fact, complied with the Safe Harbour Reforms, such as, whether the director:
- is properly informing himself or herself of the company’s financial position; or
- is taking appropriate steps to prevent any misconduct by officers or employees of the company that could adversely affect the company’s ability to pay all its debts; or
- is taking appropriate steps to ensure that the company is keeping appropriate financial records consistent with the size and nature of the company; or
- is obtaining advice from an appropriately qualified entity who was given sufficient information to give appropriate advice; or
- is developing or implementing a plan for restructuring the company to improve its financial position.
When do the Safe Harbour Reform provisions apply?
The Safe Harbour Reform provisions only apply to debts incurred (whether directly or indirectly) in connection with the course of action until such time that:
- a ‘reasonable time period’ has passed; or
- the course of action has ceased; or
- the course of action is no longer reasonably likely to lead to a better outcome; or
- the appointment of an administrator, or liquidator, of the company.
The phrase a ‘better outcome’ is defined in the Act as to mean “an outcome that is better for the company than the immediate appointment of an administrator, or liquidator, of the company.”
Debts incurred after the above circumstances may be subject to insolvent trading claims against directors.
What does this mean for directors?
Whilst the Safe Harbour Reform is intended for companies to strategically become more solvent, there is still a risk in relying on the Safe Harbour Reform as a defence to insolvent trading claims as the onus of proof is on the director should the matter escalate. So, while a director may think they are pursuing a course of action that is reasonably likely to lead to a better outcome, they need to be able to prove this. Due to this, many directors may decide to avoid the risk of not being able to successfully prove that their actions were in accordance with the Safe Harbour Reform and simply appoint voluntary administrators.
How can we help?
Our insolvency and commercial litigation team has extensive experience acting on behalf of companies and directors to reach positive outcomes. If you or someone you know requires further assistance with regard to directors’ duties or the Safe Harbour Reform, please do not hesitate to contact Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at email@example.com.
Please note that this article has been prepared by Krishna Ramji, Law Clerk and settled by Sarina Mari Alwi, Senior Associate of Rostron Carlyle Rojas Lawyers. Its contents are for general information purposes only and does not by any means constitute legal advice, nor should it be relied upon.
Australian Consumer Law: Warranty against defects and the mandatory statement to be provided to consumers
Are you a service business and do you guarantee that if the goods or services your supply are defective you will repair or replace the goods, provide again or rectify the services, or compensate the consumer? If so, from 9 June 2019 you will be required to include, in all documents containing your warranty such as your terms and conditions, marketing material, receipts, product packaging or consumer contracts (Warranty Document), one of the following statements which best suits your business:
Even if you only supply goods to consumers you are required to provide the following statement to your consumers in a Warranty Document:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Businesses that do not comply with the requirements of the Australian Consumer Law risk fines of up to $50,000 for companies and $10,000 for individuals per breach. Given the upcoming changes it is a timely reminder that you should ensure that your warranties should be documented:
2. to concisely note:
a. what the consumer must do to claim the warranty
b. what you will do to honour your warranty;
c. who will bear the expenses of the warranty and if relevant how the consumer can claim such expenses from your business;
3. to prominently state your business’ name, address, telephone number and email address;
4. to clearly state the length of the warranty and the time frame in which a consumer may claim the warranty.
Businesses are not required to display the mandatory statements noted above in relation to:
- the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored;
- services supplied under a contract of insurance; or
- supplies of gas, electricity or a telecommunications service.
In addition to the exceptions noted above, Parliament may amend the Competition and Consumer Regulations 2010 (Cth) to exclude the supply of certain goods from the operation of the Consumer guarantees in the Australian Consumer Law; however, as at the date of this article no additional exceptions have been provided.
If you would like us to prepare new terms and conditions for you or review your existing warranties, or if you would like to obtain further advice in respect of the Australian Consumer Law please don’t hesitate to contact us.
Last week we advised on the threats facing discretionary trusts as a structuring tool, particularly in light of the Australian Labor Party’s (ALP) plans should they win power at the federal election on 18 May 2019. As we now know, the Liberal-National Coalition defied all expectations not only to retain power but to be able to form government in its own right. The incumbent Morrison government campaigned against the ALP’s policies of abolishing negative gearing, reducing surplus franking credits to low income earners, reducing the CGT discount from 50% to 25% and taxing distributions to beneficiaries of discretionary trusts at 30%.
With the government not having stated plans to introduce any of the ALP’s policies, the tax effectiveness of the discretionary trust is safe – at least for the next few years – by allowing the splitting of passive income amongst beneficiaries to achieve the most beneficial tax outcome for the trust beneficiaries as a whole. Coupled with the benefits of asset protection and access to a CGT discount which looks like remaining at 50% for the foreseeable future, the discretionary trust remains a highly recommended structuring vehicle.
I’m a director of a company being sued – I won’t be liable for cost ordered against the company, right?
It is not often that the Court orders a non-party, such as a director, personally liable to pay costs of a legal proceeding. However, in the recent decision in Murphy v Mackay Labour Hire Pty Ltd  QCA 90 (Murphy), the Court held that a director who was not a party to the litigation could be made liable to pay costs, as the Court considered that the interests of justice required it.
On appeal, the Court found that Murphy as the director of the insolvent company (despite not being party to the litigation) and in defending the company, had played an active part in the conduct of the litigation.
The facts in Murphy satisfied the three criteria set out by the High Court in Knight v FP Special Assets (1992) 174 CLU 178, where the award of non-party cost order was considered just and appropriate, as follows:
- the party to a litigation is an insolvent person/entity or ‘a man of straw’;
- the non-party has played an active part in the conduct of the litigation; or
- the non-party has an interest in the litigation.
Evidentially, the non-party cost order in Murphy was justified because Murphy was effectively the real party to the litigation and the company was unable to pay the costs. Consequently, Murphy’s appeal to have the order requiring him to pay costs, was dismissed.
Additionally, Murphy’s case demonstrates the responsibility on directors, for transparency if the company is in financial hardship. On appeal, the Court agreed with the findings of the primary judge in the original proceedings that Murphy allowed the trial to run without disclosure of the company’s financial hardship to the opposing party. Murphy’s omission of this fact, had allowed the defendant to expend further legal costs on a claim which would be unenforceable. As a result, failure to disclose information about financial difficulty resulted in an adverse non-party costs order against Murphy.
The Supreme Court’s power to award a costs order
In Queensland, the Supreme Court’s power to award costs against non-parties is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) which provides that:
‘costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise’
The decision in Murphy illustrates that in particular cases, the Courts may be prepared to lift the corporate veil and use their discretion conferred by rule 681 of the UCPR to order costs against directors who are non-parties to the litigation.
Costs Order: Do you require assistance regarding
If you are a director of a company the subject of current legal proceedings, or know someone who is, and want to know more, please contact the Commercial and Corporate Lawyers at Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at firstname.lastname@example.org.
Please note that this article has been prepared by Daryl Hamley, Law Clerk and settled by Sarina Mari Alwi, Senior Associate of Rostron Carlyle Rojas Lawyers. Its contents are for general information purposes only and does not by any means constitute legal advice, nor should it be relied upon.
An individual owes you a debt (which is unsecured), such as a debt for non-payment of goods purchased.
- The individual enters into bankruptcy.
- You have not been notified of the individual’s bankruptcy but have a “provable” debt.
- 3 years later, you are now aware that the individual is a discharged bankrupt (the Discharged Bankrupt).
Can you demand payment if it was an unsecured debt?
Generally, ‘No’ – the Discharged Bankrupt will no longer be liable to pay debts that are deemed to be covered under the bankruptcy rules for certain debts. Usually after three years a bankrupt will ultimately be discharged from bankruptcy and released from their liabilities owed as at the date of bankruptcy.
On this basis, you will not be able to demand payment of the debt, and the individual is not liable to repay the debt (if the bankrupt failed to disclose a debt owed at the time of bankruptcy, they may be liable to prosecution by Australian Financial Security Authority, but that would not recover the debt).
Debts included and not included in Bankruptcy
Debts included in bankruptcy include unsecured debts (being, tangible debts), examples of which may include, but not limited to:
- Credit and store cards;
- Unsecured personal loans;
- Unsecured business loans;
- Utility bills (ie electricity, phone etc); and
- Medical, legal and accounting fees.
Conversely, debts not included in bankruptcy include, but not limited to:
- Debts incurred after the bankruptcy begins;
- Unliquidated debts (these are debts where the amount of debt is yet to be determined, not arising from contract, promise or breach of trust, which is quite rate); and
- Child support and maintenance debts.
Below is a comparison table of examples of debts that may and may not be recoverable post-bankruptcy.
How do I recover an unsecured debt in this scenario?
Generally, the only way to recover an unsecured debt is if you are a named creditor with a provable debt that came about before the start of the bankruptcy. Provable debts are debts and liabilities, present and future, certain or contingent to which a bankrupt was subject at the date of the bankruptcy, or to which they may become subject before their discharge by reason of an obligation incurred before the date of the bankruptcy.1
If your debt is a “provable debt”, you would be able to participate in the bankruptcy and be entitled to repayment of your debt, in whole or part.
However, in this Scenario, you are not a named creditor that have not been notified of the bankruptcy, you may be hindered in recovering the debt. Conversely, if you are able to prove that the debt was incurred after the bankruptcy, the individual will be liable, and you would be able to pursue the individual for payment.
Accordingly, the best avenue in which to recover an unsecured debt is to stay informed with respect to the financial position of the individual who owes you the debt.
How can we help?
If you are unsure of whether you can make a claim for an unsecured debt against a discharged bankrupt, please contact the Corporate and Commercial Lawyers at Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at email@example.com.
Please note the contents of this article are for general purposes only and does not by any means constitute legal advice, or should it be relied upon.
Bullying in the workplace is verbal, physical, social or psychological abuse (usually) by an employer (or manager), another person or group of people (other employees) at work. It can often be associated with a general toxic work culture. Often it is a symptom of poor, unethical or negligent leadership. It poses a significant, but avoidable risk. (more…)
As it has almost been seven years since the start of the Personal Property Securities Register (PPSR), this article will discuss the implications of lapsing personal and business security interests. We highlight key implications about not having your security interests protected and how the team at Rostron Carlyle Rojas Lawyers can assist.
What is a PPSR security interest?
The Personal Property Securities Act 2009 (Cth) (PPSA) came into effect on 30 January 2012, incorporating a national online register of security interests for personal property known as the Personal Property Securities Register (PPSR). The PPSR allows banks, financial institutions, businesses and individuals to register a security interest against personal property. The federally administered register was the first of its kind, and became a critical mechanism in protecting personal and business assets by allowing a priority charge to be held over a specific asset.
Which security interest registrations are affected?
PPS registrations against consumer property with serial numbers (such as your motor vehicles, boats or business machinery equipment) only allows such items to be registered on the Personal Property Securities Register (PPSR) for a period of seven years. As the PPSR this year celebrates its 7th birthday, it will be a short-lived celebration if those security interests registered at the commencement of the PPSR, have not been amended or re-registered.
As at 30 January 2019, over 120,000 registered security interests were set to expire.
To save these registrations from expiring, the secured party, being the party whose interest is being secured, must amend or create a new registration before the expiry of the original registration.
Consequences of a lapsing PPSR security interest?
If a PPS registration is not renewed, the security interest will expire, and the secured party will lose its status as a secured creditor.
PPS registrations are designed to protect personal and/or business interests, to allow recovery of property or valuable assets should the other side in the transaction being the grantor, become a bankrupt or enter into liquidation.
Accordingly, allowing your PPS registration to lapse or expire could have significant consequences. Regardless of when your security interests were registered on the PPSR, now is the time to ensure your rights are protected. To avoid losing your security interests and priority, we encourage you to check the status of your registration by generating a ‘registrations due to expire report’ using the PPSR website: https://www.ppsr.gov.au/registrations-due-expire-report.
How can we help?
Find this area of personal and/or business security interests confusing? If you have questions about a potential expired registration or want to know whether your personal and/or business security interests are still protected, please contact the team at Rostron Carlyle Rojas Lawyers on (07) 3009 8444 or email us at firstname.lastname@example.org.
Please note that this article has been prepared by Jakob Mignone, Law Clerk and settled by Sarina Mari Alwi, Associate of Rostron Carlyle Rojas Lawyers. Its contents are for general information purposes only and does not by any means constitute legal advice, nor should it be relied upon.
On May 4, 2019, Rostron Carlyle Rojas Lawyers were the co-hosts of an Investment and business migration seminar in Ho Chi Minh City, Vietnam.
The partnership between RCR Law, TP Immigration, Investment, and Consultancy attracted Vietnamese business people from near and far and was a great success for all involved.
Presenters included our Founding Partner Greg Rostron and Special Counsel Peter Kuek-Kong Lee. Alongside, Greg McKean, Manager at Business and Skilled Migration QLD, Australia and Brendan Goulding, Director in International Services at Bentleys QLD, our very own Peter Kuek-Kong Lee presented on visa options for businessmen and women looking to bring their business and investment to Australia.
Legal and financial advisors have long advised clients on the advantages of structuring their affairs using discretionary trusts, the two most notable of which are asset protection and income splitting. Assets held in a discretionary trust cannot be said to be owned by any specific beneficiary as no beneficiary is absolutely entitled to any such asset, and passive trust income can be split amongst beneficiaries to achieve the most beneficial tax outcome for the trust as a whole.
In the last 15 years the asset protection benefits of a discretionary trust have been eroded by the powers of the Family Court in family law matters, and since the decision of the Federal Court in the Richstar decision1 in 2006 there has been an argument that such erosion should also apply to matters involving the insolvency of trustees of discretionary trusts, by equating effective control of a trustee to a proprietary interest in the assets of the trust.
More topically, the income splitting benefits of discretionary trusts have come under attack from the Australian Labour Party, which is seeking to ameliorate the advantage should they win power at the Federal election to be held on 18 May 2019. The ALP’s plan is to tax all distributions from discretionary trusts to adult beneficiaries at 30%, regardless of the marginal tax rate of the beneficiary, from 1 July 2019. This policy targets the ability of the trustee to direct passive trust income to adult beneficiaries who currently earn less than $38,370 per year (taking into account the low-income tax offset) and whose income is therefore subject to a maximum 19% marginal tax rate. The ALP cites the independent Parliamentary Budget Office in claiming that these changes will lead to an additional $4.1 billion in taxes raised by the end of the 2022 financial year.
So where does this leave the discretionary trust if the ALP wins power at the election? It should be noted that the income splitting benefits of such trusts would only be reduced rather than entirely abolished. In taxing distributions to individual beneficiaries at 30% the ATO would be bringing all beneficiaries under a discretionary trust into line with “bucket companies” the income of which is taxed at a flat 30%. This means that a distribution of $139,000 or more to a beneficiary who has no assessable income in a given financial year will not be affected by the changes. Below this level of distribution, however, the changes will be felt.
Regardless of whether the ALP wins the election, discretionary trusts will remain an important structuring tool from as asset protection perspective. The fact that no one beneficiary can be said to have an entitlement to an asset of a discretionary trust allows risk of individual beneficiaries to be quarantined. In this context it is important to acknowledge that the Richstar decision has not been followed subsequently by courts, has been confined to the particular statutory context in which that case was decided and has been subjected to significant academic criticism. The flexibility of a trustee to distribute income and assets to beneficiaries will remain and, while the ALP has suggested in a separate policy a reduction in the percentage of the capital gains tax discount, there is no suggestion that it will restrict access of discretionary trusts to the discount. Moreover, where allowed by the succession legislation of the relevant jurisdiction, discretionary trusts will continue to be effective in estate planning.
Rostron Carlyle Rojas Lawyers is a full service law firm with expert Lawyers in Brisbane and Sydney. We offer our services globally, in wide array of legal areas including: Corporate and Commercial Law, Insolvency Law, Construction Law as well as Family Law to mention a few.
Don’t hesitate to contact us if you would like to discuss the use of discretionary trusts or structuring in general.