Formal and Informal Insolvency

Our Partners are all Registered and Official Liquidators and have extensive experience in all forms of corporate insolvency. Our experience enables us to maximise the value for businesses and its stakeholders through the insolvency regime with a focus on business rehabilitation through Voluntary Administrations and Deeds of Company Arrangement or, if that is not possible, the liquidation of the business.

We provide the following services:

  • Voluntary Administrations
  • Deed of Company Arrangement
  • Liquidations
  • Receiverships

 

Voluntary Administration

A company in financial difficulty can be placed into voluntary administration, instead of liquidation. The voluntary administration provides a process for business continuity (turnaround or saving the Company), whilst a liquidation is a terminal process that results in the winding up of the company.

The voluntary administration usually lasts around five (5) weeks, during which time the voluntary administrator takes control of the Company, investigates the affairs of the Company and provides creditors with a recommendation as to the best options available. This may include a proposal to creditors that enables the Company to continue in some form under a Deed of Company Arrangement.

A voluntary administrator is usually appointed by a company’s directors, after they decide that the company is insolvent or likely to become insolvent. Less commonly, a voluntary administrator may be appointed by a liquidator, provisional liquidator, or a secured creditor.

Voluntary administration provides flexibility in restructuring, negotiating outcomes with creditors and deciding the company’s future direction quickly. Other benefits include:

  • unsecured creditors can’t begin, continue or enforce their claims against the company without the administrator’s consent or the court’s permission
  • owners of property (other than perishable property) used or occupied by the company, or people who lease such property to the company, can’t recover their property
  • except in limited circumstances, secured creditors can’t enforce their security interest in the company’s assets
  • a court application to put the company in liquidation can’t be commenced
  • a creditor holding a personal guarantee from the company’s director or other person can’t act under the personal guarantee without the court’s consent.

 

Deed of Company Arrangement (“DOCA”)

A Deed of Company Arrangement (“DOCA”) is a formal proposal generally submitted by management (or an interested party) prior to the second meeting of creditors in a Voluntary Administration. The general reason for a proposed deed is the expectation of financial benefit to the parties compromising or modifying their rights.

The expected financial benefit may be generated by one of the following:

  • Continue trading to generate a profit for the company and the creditors through continued supply;
  • Modify creditor claims to assist with working capital to restructure the company;
  • Taxation advantages to carry forward tax losses in the corporate structure;
  • Restructure the company through a merger or reorganisation;
  • Take-over or sale of the company as a going concern;
  • Avoiding liquidation.

Should management (or an interested party) wish to submit a DOCA proposal, the terms of the proposal are at the discretion of the party submitting the DOCA. While the DOCA may include contributions over a period of time, and / or a lump sum amount on the achievement of a milestone (e.g. sale of an asset), in order to establish a Deed Fund for the distribution to creditors.

If a DOCA is proposed prior to the second meeting of creditors, the administrator will provide their opinion on the DOCA proposal in comparison to a liquidation scenario.

Creditors will then have an opportunity to vote on the future of the company, and any DOCA proposal, at the second meeting.

 

Liquidations

A liquidator is appointed to an insolvent company to independently take control of the company so that its affairs can be wound up in an orderly and fair way for the benefit of all creditors. It involves realising the company’s assets, cessation or sale of its operations, conducting investigations into the affairs of the business, distributing the realised proceeds (if any) among its creditors and distributing any surplus among its shareholders.

There are two types of insolvent liquidation:

  • creditors’ voluntary liquidation; and
  • court liquidation.

The most common type is a creditors’ voluntary liquidation, which usually begins in one of two ways:
the company’s shareholders resolve to liquidate the company and appoint a liquidator.
creditors of the company vote to wound up the company following a voluntary administration or a terminated deed of company arrangement

In a court liquidation, the court winds up the company and appoints a liquidator following the lodgement of a winding up application. A winding up application can be lodged by creditors, company director(s), company shareholder(s) or ASIC.

Unsecured creditors cannot commence or continue legal action against the company, unless the court permits after the company is in liquidation.

A members’ voluntary liquidation is a solvent company. Shareholders of the company will wound up the company and appointed a liquidator to distribute the assets of the company in accordance with the company’s constitution.

 

Receivership

A secured creditor or the Court may appoint a receiver (or receiver & manager or controller) to take control over the entire company or over specific company property and realise the property in the interest of that secured creditor. Any surplus available after discharging the debt will subsequently be returned to the company or the liquidator, if one is appointed.