Most business ventures are entered into in good faith and with hope and expectation for success among the parties involved.
Unfortunately, original intentions are not always realised. Companies and other corporate partnerships such as joint ventures can often turn into acrimonious affairs when the vision for the business is not realised, the people involved wish to go their separate ways or some other dispute arises.
These situations can be avoided if the shareholders or partners in the business enter into a properly drafted agreement at the start of the venture. But where such a document doesn’t exist or is contested, the dispute can become intractable with threats of legal action which can leave all parties to the venture worse off.
One way to avoid such an expensive and lengthy resolution of the issues involved is to appoint a liquidator to assist the parties to exit the business in an orderly fashion. It’s important to note that a company or partnership between companies does not need to be insolvent for it to be placed in the hands of liquidators.
What situations are suitable for the appointment of a liquidator?
There are a number of scenarios where corporate partnerships or shareholders may apply for the appointment of a liquidator:
- Where there is a dispute between directors/shareholders or partners that is adversely affecting the company’s business or assets and can’t be resolved through dispute resolution or by agreement;
- Where a creditor of the venture has fears that directors or partners are inappropriately dealing with assets or removing them from the company;
- Where a shareholder or partner has concerns that other executives may be acting in their own interests and diminishing the venture’s financial position.
In any of the scenarios outlined above, the appointment of a liquidator is designed to protect and preserve the company’s assets until the dispute can be resolved or the venture wound up. An independent arbiter in the form of the liquidator can manage the ongoing affairs of the company, and also protect the interests of the aggrieved party who applied for their appointment.
How does the process work?
Once appointed, usually by agreement of the shareholders or partners and even when the company is solvent, the liquidator’s role becomes to:
- realise the company’s assets;
- maximise the return on those assets to repay the company’s creditors;
- pay any surplus funds to creditors.
The liquidator’s role is to provide parties to the dispute with solutions in order to realise a ‘just and equitable’ outcome. One solution may be to sell the business either privately or via an open market process, using the proceeds to repay creditors and distribute the remainder to shareholders or partners. In other circumstances, a structured wind-down of business operations might be undertaken, with creditors repaid as assets are realised and remaining value in the business distributed to shareholders/partners.
The provisional liquidation option
Applications to the court for the appointment of liquidators can occur on various grounds under sections 459Q and 461 of the Corporations Act 2001.
Court-appointed liquidation – where the Court orders that a company be wound up and a liquidator be appointed – occurs on application by a creditor, director or shareholder of the company, or the Australia Securities and Investments Commission (ASIC). Once this application is made, a further application can be made to the court for a provisional liquidator to be appointed prior to any winding up of the company or joint venture. The provisional liquidator operates in the period between when the liquidation application is made and the winding up application is heard by the Court, and generally happens when there is a dispute between shareholders or partners.
This is appointment will be made by the court on ‘just and equitable’ grounds to the parties involved. Such an application should only be made once all avenues of dispute resolution and mediation are exhausted.
A court may make this appointment if on the evidence available it is satisfied that the business’ assets are at risk of being diminished. The liquidator will be charged with maintaining the status quo of the business or partnership and preserving its assets, meaning it is not empowered to conduct investigations into the venture’s affairs, recover voidable transaction of distribute funds to creditors. The provisional liquidator may also, however, have the power to sell a business and/or its assets.
Meaning of ‘just and equitable’ outcome
Consideration of what is a just and equitable outcome for those involved in the business is complex and the court will only consider liquidation as a last resort where the business is solvent.
But it will order the company to be brought to an end through liquidation where the dispute is at a deadlock and can’t be resolved through normal dispute resolution. In some cases, the possibility of winding up the company will change the minds of the disputants and force them to the negotiating table.
The need for expert legal advice
This can be a complicated area of law and legal advice from professionals with experience in corporations law is essential. At Felicio Law Firm we have advised many clients on the advantages and drawbacks of appointing a liquidator to try and end an impasse in the operation of a business, both for shareholder disputes and corporate partnerships. Consult one of our Erina lawyer’s experts in this field if anything in this article applies to your situation.