INSOLVENCY & BANKRUPTCY
The administration process aims to rescue a company or ensure survival as a going concern. Formal administration typically follows a period of planning to maximise stakeholder returns, either through a sale by the administrator or a company rescue through a Deed of Company Arrangement (DOCA).
Stewart Law advises companies and their lender stakeholders when to enter into an insolvency process due to trading and cash flow difficulties.
Our expertise covers a wide range of businesses, from small enterprises to large multi-jurisdictional corporations. We work closely with specialist lawyers and valuers in all trading administrations to ensure assets are maximised to obtain best value for a distressed business.
A bank or other creditor holding appropriate security may consider appointing a receiver or a receiver and manager to sell the business or assets and use the proceeds to settle, wholly or partially, its secured claim.
Our expertise includes:
Advising secured creditors in pre-receivership planning
Acting as receiver and/or manager under circulating and non-circulating security interests
Managing the business
Selling the business as a going concern
Realising assets at the best price.
Court appointed receiverships
Occasionally an application may be made to the court for the appointment of a receiver in case of a dispute between shareholders or partners, or where security is in jeopardy or the company is in default.
Our partners have previously acted as court appointed receivers of shares, companies, partnerships, and associations.
Liquidation provides a mechanism for the formal winding up of a company in a controlled manner.
At Stewart Law, our experienced licensed practitioners will realise assets for the benefit of creditors. A liquidator will aim to:
• Dispose of the assets of the company
• Distribute the funds realised according to the statutory order of priorities among the company’s creditors.
If requested by creditors and other stakeholders, our liquidators can:
• Perform extensive investigations into failed companies
• Examine the conduct of a company’s directors and senior management
Distressed companies need to proactively manage their stakeholders including lenders, equity providers, customers, suppliers, credit insurers, rating agencies, regulators and employees. Each group has different concerns and aspirations and providing appropriate information and messages is essential to secure their ongoing support.
During such periods, management faces multiple demands on their time and resources which are often outside its comfort zone and situational experience. Understanding the objectives of key stakeholders and providing appropriate support and advice is critical in underpinning agreement and implementation of a workable plan.
Our extensive situational experience is beneficial in advising and supporting management in achieving its goals. Our presence also brings reassurance to stakeholders who want to see the management team in ‘safe hands’.
Bankruptcy is a legal process where you're declared unable to pay your debts. It can release you from most debts, provide relief and allow you to make a fresh start.
You can enter into voluntary bankruptcy. To do this you need to complete and submit a Bankruptcy Form. It's also possible that someone you owe money to (a creditor) can make you bankrupt through a court process. We refer to this as a creditor's petition.
Bankruptcy normally lasts for 3 years and 1 day.
Bankruptcy is the formal process of being declared unable to pay your debts.
When you become bankrupt, you don't have to pay most of the debts you owe. Debt collectors stop contacting you. But it can severely affect your chances of borrowing money in the future.
The consequences of bankruptcy
Once you become bankrupt:
You stay bankrupt for three years.
Your bankruptcy stays on your credit report for five years.
Your name is on the National Personal Insolvency Index permanently.
A trustee looks after your affairs.
You must ask your trustee for permission to travel overseas.
You can't be a director of a company without court permission.
You may not be able to work in certain trades or professions (see AFSA's employment restrictions).
A debt agreement (also known as a Part IX debt agreement) is a formal way of settling most debts without going bankrupt.
It's an agreement between you and your creditors — that is, whoever you owe money to.
A debt agreement is for people on a lower income who can't pay what they owe. But it comes with consequences.
How a debt agreement works
With a debt agreement, your creditors agree to accept an amount of money that you can afford. You pay this over a period of time to settle your debts.
Once you've paid the agreed amount, you've paid those debts.
A debt agreement is not the same as a debt consolidation loan or informal payment arrangements with your creditors.
The consequences of a debt agreement
Once you've signed a debt agreement:
It's listed on your credit report for five years or more.
You must tell new credit providers about it if you owe more than the credit limit (see AFSA's indexed amounts).
Your name is on the National Personal Insolvency Index for five years or more.
You may not be able to work in certain professions.
A creditor may bring bankruptcy proceedings against a debtor by filing a Creditor’s Petition in either the Federal Court or the Federal Circuit Court where the following four requirements are met:
Creditor’s Petition – Act of bankruptcy
As mentioned above, when the Creditor’s Petition is heard in court, it must be established by the creditor that an act of bankruptcy was committed by the debtor within six months before the Creditor’s Petition was filed. The various acts of bankruptcy set out in section 40(1) of the Bankruptcy Act (1966), all demonstrate an inability of the debtor to pay their creditors. In our experience, the most common act of bankruptcy relied upon by creditors is a failure to comply with a bankruptcy notice (BA s 40(1)(g)).