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It was introduced in 2001 which creates a “safe harbour” for Directors to be immune from personal liability for debts incurred by an insolvent company under certain circumstances.
Insolvency of a controlling company focuses on the need for Directors to appoint Voluntary Directors of the company if they suspect that the company is insolvent to avoid the risk of the Director being found personally liable for debts that the company incurred while trading insolvent.
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The appointment of a Voluntary Director is often followed by the appointment of a Liquidator and results in a total loss of any goodwill of the company’s business and a fire sale of assets with little or no debt recovery from unsecured creditors.
The purpose of the Safe Harbor provisions is to promote a culture of restructuring in Australia by providing protection to Directors who act quickly to achieve a better outcome for the company than the outcome that would result from the immediate appointment of a Director or Liquidator.
, a Director of a company that does not use Safe Harbor provisions is personally liable for loss or damage suffered by the creditor in connection with the debt where:
Generally, the test to determine whether a company is insolvent is whether the company is able to meet its debts even in the event of bankruptcy. In accounting terms, the assessment of financial solvency is based on the company’s current assets, but the Balance Sheet should not be ignored.
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Courts decide on bankruptcy based on the overall financial condition of the company. This requires an assessment of the commercial reality of what resources the company has to meet its debts, whether, and if so when, those resources can be obtained, either by sale or as collateral for a loan.
As the Safe Harbor can, however, be applied from the time the Director suspects that the company is insolvent or insolvent, it is recommended that the Directors act quickly to ensure that the Safe Harbor is activated as soon as they become concerned about the company’s ability to pay. its bills as and when required.
For the purpose of determining whether an action is likely to lead to the best outcome for the company, the Courts may consider whether a Director:
“Better result” for the company, means a better result for the company than the immediate appointment of a Director, or Liquidator, of the company. In most cases the appointment of an Administrator or Advisor of the company will lead to a total or substantial loss of the goodwill value of the business and the realization of the assets of the fire sale value only. Depending on whether any secured creditors exist with the business or the company’s assets, Voluntary Administration or Liquidation will, therefore, result in a lack of secured creditors and no repayment to unsecured creditors at all.
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An early evaluation of the company’s financial situation and an assessment of the possible outcome of the Administration or Closure of the company is essential in maintaining the Safe Harbor and assessing whether the proposed courses of action can lead to a better outcome.
However, as the result of the company and its creditors of the Administration or Registration is always a crisis, any result of the restructuring can lead to an improved compensation for the creditors, whether it is the conversion or the sale of the business (and mercy) or the commercial assets. price (as opposed to a fire sale situation), will be a better result for the company.
Restructuring is a business management term taken to reorganize or change the operations, buildings or financial accommodation of a company with the aim of making it more profitable, better adapted to its current needs or the elimination of financial injury.
Restructuring activities can range from small projects aimed at improving efficiency and profitability, to more detailed transformation processes, such as asset or business separation and/or controlled wind-down. The subjects that may, therefore, form part of the Restructuring Plan will depend on the specific circumstances of the company but may include:
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A Director will not be eligible for Safe Harbor protection in relation to a liability if, when the liability is incurred, the company fails to:
In general, in order for the Director to enter the Safe Harbor the company must, therefore, ensure that all outstanding employee obligations are paid and that all returns, notices, statements or other documents required to be filed under tax laws are filed.
After that, there should be greater compliance with the company’s obligations regarding the timely payment of employee benefits and tax law reporting requirements.
The Safe Harbor protection under Section 588GA shall, subject to the above conditions, commence when a Director who has begun to suspect that the company may be insolvent or insolvent commences to take a course of action likely to lead to a better outcome for the company and shall continue thereafter until the earlier of the following periods:
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Obtaining advice from a properly qualified institution is one of the circumstances that the Courts may consider in determining whether a particular action would lead to a better outcome for the company. There is, however, no definition of ‘eligible institution’ in the
This information is intended to provide general ideas and practical advice on what a Director who suspects his company is insolvent or insolvent should do to obtain Safe Harbor protection from claims of insolvency.
It should, however, be noted that the Safe Harbor will not indemnify a Director from personal liability arising in connection with any Director ATO Penalties under
1953. If you have received an Administrator’s Penalty Notice or your company has not reported withholding on PAYG or Superannuation Fund Guarantee Payments debts within three (3) months of the due date you should seek urgent legal advice.
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It should be noted that Directors seeking to rely on the Safe Harbor provisions bear the burden of proof to adduce or point to evidence establishing the actions taken by them to enter and remain under the Safe Harbor Protection in order to avoid personal liability that may otherwise arise. in relation to debts incurred while the company was trading insolvent.
The directors must, therefore, be careful to keep records and make notes in relation to all the steps they take following the restructuring plan and the best results of the company starting with the need for this information.
A Safe Harbor Decision is an Executive Decision calling for or seeking to invoke Safe Harbor protection. The Decision ensures that there is a clear statement, at the outset, of the commencement of the Safe Harbor period.
This does not need to be a long or complicated document. However, the immediate preparation of the Reorganization Plan will be necessary to establish a Safe Harbor in the event of a future claim against the Administrator for insolvency.
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Importantly, the Safe Harbor protection does not apply to preserve any action that any of the creditors may take or be in the process of taking in connection with any debts. It follows that administrators must be aware of the need to:
A Restructuring Plan should be developed and implemented with the help of properly trained personnel. The advisers that may ultimately be suitable will depend on the company’s financial situation and the restructuring plan to be adopted and implemented, however, it will include a Procurement Lawyer, a Business Accountant and a Debt Officer.
Of course, if the Director no longer suspects bankruptcy, the preparation and implementation of the Restructuring Plan will not be necessary as the steps already taken will have resolved the financial situation of the company and ensure that the Director is Secured from receiving debt payments in the future. commercial claim (as much as possible).
The Reform Plan should be updated regularly to ensure that the Safe Harbor protection is not lost as it becomes clear that the proposed action.
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