Category

Business Law

Liquidation

What You Need to Know About Liquidation

By | Business Law

Incompetence. Mismanagement. Bad luck. Some combination thereof. There are lots of reasons businesses experience catastrophic financial difficulties. There are also lots of consequences, including liquidation. Here’s what all business owners should know about liquidation, and how it differs from the other repercussions of crushing debt.

What is liquidation?

To understand liquidation, one most first understand the concept of insolvency. A business (usually a company) goes into insolvency or becomes insolvent when its debt is such that the company is incapable of meeting past, current or future financial obligations.

Depending on the circumstances, insolvency can lead to receivership, administration, bankruptcy (generally applicable to individuals/sole proprietors) and liquidation. Each of these includes different protocols and mechanisms for the resolution of debt, which we will discuss briefly here.

Receivership

This happens when a secured creditor or creditors enlist the help of someone called a “receiver” to recover money owed.

The receiver’s job is to oversee the sale of any business assets and/or the business and the distribution of the proceeds to the secured creditors, followed by any unsecured creditors and other relevant parties in accordance with applicable rules. The receiver is also responsible for notifying the Australian Securities & Investment Commission (ASIC) about any related  offences.

There are two things to keep in mind here. The first is that receivership can be implemented without a court order. The second is that receivership does not change the legal status of the company; your directors can carry on, but the scope of their power will be restricted.

Administration

Administration is similar to receivership, in that someone is recruited to put things right. This person is called an administrator, and he/she has two responsibilities. The first is to ensure that outstanding debts are paid and the second is to see that the sale of the business/business assets goes smoothly.

Depending on the situation, administration may result in liquidation or restoration of control to the company’s directors.

Bankruptcy

As we have noted, bankruptcy does not apply to companies. Instead, it applies only to individuals/sole proprietorships. Accordingly, it is carried out on a much smaller scale.

Instead of an administrator or receiver, a trustee is chosen to oversee the process. In this role, he or she may coordinate the sale of assets, secure your income for a given period for the repayment of debts, or secure property wrongfully given or ‘sold’ to someone else in an effort to prevent its sale for repayment of debts.

Another consequence of bankruptcy is placement of your name, along with a mark, on the National Personal Insolvency Index (NPII) for up to five years. The NPII is a widely accessible database that includes the individual/business names and addresses of anyone who has declared bankruptcy.

What happens when a business is ‘liquidated’?

Liquidation – the process whereby which the business is done away with and all of its assets are sold – usually applies only in the most dire situations. It includes the following steps:

  1. The conversion of the company’s assets to cash (through sales).
  2. Distribution of the proceeds to creditors.
  3. Distribution of any remaining funds to shareholders.
  4. Formal request to ASIC to remove the company from the register, thereby ending its legal existence.

You should also be aware that this process is carried out by someone called a liquidator and that it can happen after the business has gone through receivership and/or administration.

How to tell when liquidation is forthcoming

Insolvency – particularly liquidation – may be warranted when a business:

  • Cannot meet its monthly expenses;
  • cannot sustain fair market salaries for its employees;
  • can no longer afford to pay its taxes or make required contributions to employee superannuation;
  • cannot recoup sufficient funds from its debtors or ongoing work to meet the cash flow demands.

There are other warning signs that should also be taken into consideration. For example, liquidation may be imminent if your business is hemorrhaging so much money that the bank secures a mortgage on your home to ensure it can recover the amount owed. It may also be forthcoming if growing business debt prompts a creditor or creditors to obtain personal guarantees. Liquidation may be on the cards if your business continues to incur debt after it is declared insolvent and goes through receivership or administration. Finally, liquidation is likely inevitable if you (or any other director) receives a Director Penalty Notice from the Australian Tax Office that the company is incapable of paying.

Ignorance is not bliss

One of the more unfortunate aspects of human nature is our tendency to ignore unpleasant situations. But as we all know, wishing something away doesn’t work. If your business is facing financial difficulties, the best thing to do is seek advice from qualified legal and financial professionals as soon as possible. Our legal team is here to help so contact us by phone on (02) 4365 4249 or through our website, today.

debt recovery in NSW

What You Need to Know About Debt Recovery in New South Wales

By | Business Law, Litigation

There are few more frustrating experiences for a company than chasing debts incurred by clients and customers. That frustration is compounded by how much time and money it can take to recover outstanding amounts owed to the business.

While many creditors are inclined to immediately threaten court action to enforce collection of what is owed, this course can prove costly and time-consuming, and should always be seen as a last resort.

Upfront communication with the debtor, payment plans, alternative dispute resolution and a letter of demand are all steps that could be taken to try and recover the debt before the matter needs to proceed to court. Below is some more detail on methods of debt recovery in NSW.

Preliminary methods of debt recovery

Ideally some honest communication with the debtor via phone, email or other means can resolve the issue. This is a process of investigation as to why the debt has not been paid and what is possible – such as instalments, a downpayment or some other payment plan – in order for the debtor to make headway in resolving the issue.

Should this means be unsuccessful, or the results uncertain, the parties might use alternative dispute resolution (ADR) as a way to reach agreement on debt repayment. So long as both parties are amenable, an independent third party can manage negotiations between them to find a mutual agreement on how to resolve the debt.

If ADR fails to recover the debt, most companies will proceed to a letter of demand. In general, this should be drafted after consulting with a lawyer experienced in debt recovery, and constitutes a formal request for payment which will detail the amount owing; the deadline for payment; and the consequences if payment is not forthcoming, including progressing to legal proceedings to recover the debt.

The court process for debt recovery

If the terms set out in the letter of demand are ignored, legal action can commence. A creditor must file a Statement of Claim with the relevant court in order to begin the legal process of debt recovery.

The size of the debt and its nature (business-related, personal, etc.) will determine which court hears the matter and also what the process will eventually cost.

The path to resolution is also complicated when a debtor raises a defence as to why they haven’t paid the debt. When this happens both parties will be required to submit evidence and attend a hearing in court.

Where a debtor does not file a defence, the creditor can apply for a default judgment where the court can order the debtor to pay back the money – known as a ‘judgment debt’ – without a hearing. Once ordered, a judgment debt can empower a creditor to take further enforcement action.

Creditors can begin enforcement proceedings at any time up to 12 years from the judgment date where debtors ignore orders of the court.

Types of enforcement

A creditor can seek court orders for a number of different ways to enforce debt recovery. These include:

  • Garnishee order: this orders a third party who holds money on behalf of the debtor, such as a bank, or someone who owes money to the debtor, to have money deducted and paid towards the debt amount.
  • Writ of execution: an order by which the sheriff’s office can seize and sell property of the debtor to pay off the creditor.
  • Writ for possession of property: directs the sheriff’s office to seize and sell property of the debtor in order to pay the creditor.

Additionally, when the debt is over $5,000 in NSW , a creditor may ask the court to declare the debtor bankrupt. Doing so may result in the debtor surrendering control of their money and other assets to a trustee. The trustee will then try to resolve the bankrupt’s debts.

Where a debtor is a company and the debt is over $2,000, a creditor may issue a statutory demand under section 459E of the Corporations Act 2001 (Cth) which requires the debtor to pay the debt within 21 days. This demand can be made with or without a judgment debt but it should be noted that to do so without may see the debtor challenge the demand on the basis that the debt is in dispute.

A debtor who fails to comply with a statutory demand leaves itself open to a creditor commencing proceedings to find it insolvent. Conversely, should the debtor have limited or no assets, this process may see the creditor never recovering the debt.

In conclusion

The various steps in trying to recover a debt can be complex and consume a lot of valuable company time. Moreover, different strategies apply depending on the amount and type of debt, and different time limits can also apply.

If you need advice on a debt recovery matter, contact our Central Coast Lawyers today on (02) 4365 4249 for an expert assessment of your situation and how we can achieve your desired outcome in a prompt and cost-efficient fashion.

Uncovering Unclaimed Money

Commercial Law – Uncovering Unclaimed Money

By | Business Law

Commercial law is also known as the area of Business and Corporate law.

This aspect of law focuses on commerce, trade, sales alongside individuals and businesses who conduct particular financial activities. At Felicio Law Firm, we will support you in navigating and addressing issues you face in respects to your business affairs.

Uncovering Unclaimed Money

Do you have unclaimed money waiting to be retrieve in an account somewhere?

In Australia alone, there is over $1 Billion dollars’ worth of lost money waiting to be claimed by its rightful owner at any given time. This is due to the fact that the money has become unclaimed for a number of years. Keeping track of different accounts from superannuation, shares, insurance policies, bank accounts and investments can be quite hard, however if not tracked properly, it can lead to the result of your own money becoming unclaimed and lost.

When money in these accounts convert as unclaimed, the funds are then paid to the Australian Securities Investments Commission. Once unclaimed money is received by the ASIC, it is then transferred to the Commonwealth of Australia Consolidated Revenue Fund where the legitimate owner can request for the money at any given time.

Felicio Law Firm is a registered agent to the ASIC, and we able to conduct the lodgements and searches for any unclaimed money in Australia linked to you. We will be able to assist you in finding unclaimed money you may have lost, and conduct the correct procedure in claiming this money back for you.