Before we crack open the champagne, we need to put these statistics into perspective rather than looking at them in isolation – specifically let’s look at what appears to have been happening in the economy over the past few years to get a deeper sense of what might be in store down the track and what households and business owners should focus on.
According to March 2019 data, the annual inflation rate is running at 1.3% – well below the RBA target range of 2-3%. Also, with approximately 60% of our economic growth dependent on household spending, there is little doubt that any pullback by households is going to have an impact on economic growth and therefore inflation which in turn drives wage growth.
Have Aussie households lost their mojo?
During much of 2018 and 2019 we have been told repeatedly of the pullback in the property market and the negative wealth effect that this has on households. Households don’t feel as optimistic because their house/unit price has dropped. There has also been no shortage of reporting on the level of indebtedness of Aussie households compared to the rest of the world. Households run on confidence and therefore it shouldn’t be surprising that households have become increasingly wary of debt and that there has been a deleveraging of household balance sheets. Additionally, households were aware of the 2019 Federal Election in which almost all pollsters predicted a labour victory which was going to see some significant tax changes (ie the franking credits/retiree tax, limitation on negative gearing and reduction in CGT threshold) and this contributed to households taking a subdued position when it comes to spending. These factors might help explain part of the story, particularly over the past couple of years, but there are other takeaways to contemplate some of which are structural and challenging other Western economies.
What to make of credit card lending rates?
The annual growth of credit card debt is at a 17-year low. Consumers are paying off their credit card debt by the due date and appear to be preferring to use debit cards and buy now pay later (“BNPL”) arrangements to manage their finances. Of course, there will always be troublesome credit card users – but the overall statistics are interesting to observe.
How does the lack of growth in credit card debt correlate with bankruptcy numbers? We know that excessive credit card debt accounts for approximately 35% of Australian bankruptcies. Therefore, it is not surprising bankruptcy numbers have decreased given the decline indicated above.
However, does the increasing use of debit cards or BNPL arrangements also represent a change in consumer behavior for the better? This should be closely monitored because there is potentially a very significant undercurrent that could create debt addiction of a different form. An ASIC review of BNPL arrangements in 2018 revealed that 60% of BNPL users are in the 18-34 age group and 40% of the users in this age bracket earn less than $40,000 per annum. The review also found that 1 in 6 users of BNPL arrangements had become overdrawn, delayed other bill payments or borrowed money so they could make their BNPL payments.
One point to note is that most of the BNPL service providers are not legally required to undertake credit checks because they are not regulated under the National Credit Act which typically applies to credit providers because they charge interest. As BNPL service providers are only providing debt and have a different business model to credit card providers at present they are not subject to the above Act.
Most BNPL service providers make the significant bulk of their earnings (in most cases approximately 70%) from the fees that merchants pay them to have the service in-store. The balance of their earnings related to missed payment fees and other fees – but not interest.
Could BNPL arrangements impact the growth in credit card usage? Possibly, but I think that credit cards will still be used by many businesses and households where they want the ultimate flexibility that it provides. Of course, the rule of thumb with the use of any credit is that you should still be living within your means.
- At the end of the day whether the purchasing decision occurs with the use of a credit card or a BNPL arrangement – debt is debt and still needs to be repaid. Note the ASIC review shows that some BNPL users are using other forms of debt to pay BNPL debts!!
- Also remember those in the 35-49 age bracket represent approximately 40% (the highest proportion) of the total annual bankruptcy numbers in Australia. Such statistic has not change materially over the past 10 years.
- Excessive credit card usage / personal loans, loss of employment and relationship breakdown are the top three (3) main causes of bankruptcy.
- One would be misguided to think that the extreme period of lower bankruptcy numbers and lower credit card debt levels are welcome signs and that all is “rosy” and there is nothing else to consider. They are important, but only if other key indicators are also headed in the right direction. Presently, we appear to have stalling economic growth, flat wages growth (at a time where we are at/near full employment), interest rates are at historic lows and considerable geopolitical risks which could have an adverse impact on the economy.
- Households should continue to get their debt levels well under control (and this will mean something different for each household) particularly in a low interest rate environment. If you need help with your budgeting and related aspects there is some great information on www.moneysmart.gov.au.
Will Aussie households regain their mojo?
Many households were already in a deleveraging mode before the outcome of the 2019 Federal Election. Post the election result which saw the Coalition returned to power, there does appear to be a level of renewed confidence amongst households and business owners. However, it is too early to say whether this will be sustained over the next few quarters. I believe that Aussie households can regain their mojo and start spending again. However, for it to be sustainable we need to start to see wage growth. The Federal Government and the RBA are acutely aware of this and one gets a sense that they will need to pull on certain monetary and fiscal policy levers during the course of this year to get households confident again.
Absent of external shocks arising from largely geopolitical risks (think trade wars) then I do believe that the Aussie household will regain its mojo. But it is delicately positioned. If economic growth stalls, then we may be in for a bumpy ride.
The record low bankruptcy and credit card debt numbers make great headlines, but there are many ways that households can get into too much debt. Sometimes this occurs through poor planning, not providing for tax liabilities, extravagance in living and sometimes just bloody bad luck – such as serious long-term medical condition coupled with a loss of employment.
There will always be data available for economic or other forms of analysis that will make for interesting headlines. Most households if they are anything like mine, are time poor! So focus on what your household financial objectives are, regularly review them and don’t let yourself get too distracted by the noise. If you need to make changes, then there are lots of useful resources to assist. No matter what age you are, always continue to invest in yourself in getting better at what you do or learning another skill.
However, if you find you are in a financial hard spot and you can’t see your way through, please contact me to get a clear direction and peace of mind about how to deal with it.
Australian bankruptcy numbers at a 24-year low. Credit card lending at an 8-year low. Is this good news?
/in Blog, Insolvency Business Recovery Media Updates /by Bruce GleesonBefore we crack open the champagne, we need to put these statistics into perspective rather than looking at them in isolation – specifically let’s look at what appears to have been happening in the economy over the past few years to get a deeper sense of what might be in store down the track and what households and business owners should focus on.
According to March 2019 data, the annual inflation rate is running at 1.3% – well below the RBA target range of 2-3%. Also, with approximately 60% of our economic growth dependent on household spending, there is little doubt that any pullback by households is going to have an impact on economic growth and therefore inflation which in turn drives wage growth.
Have Aussie households lost their mojo?
During much of 2018 and 2019 we have been told repeatedly of the pullback in the property market and the negative wealth effect that this has on households. Households don’t feel as optimistic because their house/unit price has dropped. There has also been no shortage of reporting on the level of indebtedness of Aussie households compared to the rest of the world. Households run on confidence and therefore it shouldn’t be surprising that households have become increasingly wary of debt and that there has been a deleveraging of household balance sheets. Additionally, households were aware of the 2019 Federal Election in which almost all pollsters predicted a labour victory which was going to see some significant tax changes (ie the franking credits/retiree tax, limitation on negative gearing and reduction in CGT threshold) and this contributed to households taking a subdued position when it comes to spending. These factors might help explain part of the story, particularly over the past couple of years, but there are other takeaways to contemplate some of which are structural and challenging other Western economies.
What to make of credit card lending rates?
The annual growth of credit card debt is at a 17-year low. Consumers are paying off their credit card debt by the due date and appear to be preferring to use debit cards and buy now pay later (“BNPL”) arrangements to manage their finances. Of course, there will always be troublesome credit card users – but the overall statistics are interesting to observe.
How does the lack of growth in credit card debt correlate with bankruptcy numbers? We know that excessive credit card debt accounts for approximately 35% of Australian bankruptcies. Therefore, it is not surprising bankruptcy numbers have decreased given the decline indicated above.
However, does the increasing use of debit cards or BNPL arrangements also represent a change in consumer behavior for the better? This should be closely monitored because there is potentially a very significant undercurrent that could create debt addiction of a different form. An ASIC review of BNPL arrangements in 2018 revealed that 60% of BNPL users are in the 18-34 age group and 40% of the users in this age bracket earn less than $40,000 per annum. The review also found that 1 in 6 users of BNPL arrangements had become overdrawn, delayed other bill payments or borrowed money so they could make their BNPL payments.
One point to note is that most of the BNPL service providers are not legally required to undertake credit checks because they are not regulated under the National Credit Act which typically applies to credit providers because they charge interest. As BNPL service providers are only providing debt and have a different business model to credit card providers at present they are not subject to the above Act.
Most BNPL service providers make the significant bulk of their earnings (in most cases approximately 70%) from the fees that merchants pay them to have the service in-store. The balance of their earnings related to missed payment fees and other fees – but not interest.
Could BNPL arrangements impact the growth in credit card usage? Possibly, but I think that credit cards will still be used by many businesses and households where they want the ultimate flexibility that it provides. Of course, the rule of thumb with the use of any credit is that you should still be living within your means.
Will Aussie households regain their mojo?
Many households were already in a deleveraging mode before the outcome of the 2019 Federal Election. Post the election result which saw the Coalition returned to power, there does appear to be a level of renewed confidence amongst households and business owners. However, it is too early to say whether this will be sustained over the next few quarters. I believe that Aussie households can regain their mojo and start spending again. However, for it to be sustainable we need to start to see wage growth. The Federal Government and the RBA are acutely aware of this and one gets a sense that they will need to pull on certain monetary and fiscal policy levers during the course of this year to get households confident again.
Absent of external shocks arising from largely geopolitical risks (think trade wars) then I do believe that the Aussie household will regain its mojo. But it is delicately positioned. If economic growth stalls, then we may be in for a bumpy ride.
The record low bankruptcy and credit card debt numbers make great headlines, but there are many ways that households can get into too much debt. Sometimes this occurs through poor planning, not providing for tax liabilities, extravagance in living and sometimes just bloody bad luck – such as serious long-term medical condition coupled with a loss of employment.
There will always be data available for economic or other forms of analysis that will make for interesting headlines. Most households if they are anything like mine, are time poor! So focus on what your household financial objectives are, regularly review them and don’t let yourself get too distracted by the noise. If you need to make changes, then there are lots of useful resources to assist. No matter what age you are, always continue to invest in yourself in getting better at what you do or learning another skill.
However, if you find you are in a financial hard spot and you can’t see your way through, please contact me to get a clear direction and peace of mind about how to deal with it.
Directors Beware – Extended Personal Liability for Unpaid Superannuation
/in Blog, Insolvency Business Recovery Media Updates /by Bruce GleesonAs an employee how often do you check that your employer is paying your superannuation on time? Would you know how many months your employer might be in arrears? What if you knew that your employer was using your superannuation guarantee (“SG”) contributions (being 9.5% of your relevant remuneration) to assist in the cash flow of their business? Did you know that the number of employers who lodged SG charge statements increased 60% from the preceding financial year (the total number being approximately 17,700)?
For some-time now (in fact since 2009), the Federal Government and the Australian Taxation Office (“ATO”) have been targeting non-compliance with superannuation guarantee (“SG”) obligations. Such initiatives are unlikely to slow down any-time soon and directors need to ensure that they “play by the rules” in order to avoid personal liability which have recently been further extended. The SG obligation is not the employer’s money in the first place – it is part of the employee’s remuneration package.
As an Insolvency Practitioner, I frequently see situations where employees are completely in the dark about how much they are out of pocket for unpaid SG contributions. Whilst such amounts are priority claims under the Corporations Act and Bankruptcy Act, in many instances there are simply not enough recoveries made to enable these priority claims to be paid. Whilst there is a Federal Government scheme (known as FEG) to cover employee entitlements where an employer becomes insolvent (ie liquidation / bankruptcy), such scheme only seeks to cover items such as unpaid wages, leave entitlements and redundancy. It does not cover SG contributions.
Whilst for many employees access to superannuation benefits may be many years away, with all the easy ways to access account details (ie mobile, desktop etc), there is really no excuse to not know where your superannuation is at during your employment.
Under the current regime employers must:
What’s changed for directors?
What’s down the track for directors?
Further draft legislation before Parliament under the banner of combatting illegal phoenixing had not been passed at the time of writing but seeks to extend the DPN regime whereby directors can also be held personally liable for outstanding GST debts of the company. It remains uncertain how and within what timeframe such draft legislation may be reintroduced into Parliament after the Federal Election, however it is something to be aware of. I will be closely following re-introduction of this draft legislation.
The ATO in many corporate insolvencies is a significant creditor and clearly is desirous of ensuring that it can maximise revenue collections.
What should company directors do?
Directors should ensure that they are familiar with the DPN regime and the personal liability that may potentially stem from not reporting and paying within due dates PAYG, SG contributions and into the future potentially, GST debts.
At a minimum, you should ensure that you are aware of and report the company’s obligations by the due dates.
If the company is experiencing cash flow or liquidity problems, seek advice at the earliest opportunity possible. Also new directors need to be even more vigilant regarding the level of due diligence conducted by them prior to agreeing to be appointed as an incoming director to a company (ie after 30 days from being appointed) as you will be on risk for any unpaid PAYG and SG contribution amounts.
Also, with Single Touch Payroll on the way for small businesses (and already in place for larger businesses), employers should take the time to ensure that they are paying employees SG contributions on time to avoid potential personal liability. With Single Touch Payroll and other data matching tools becoming increasingly available to the ATO, it is likely that they will be able to assess and make determinations more swiftly regarding recalcitrant employers.
Jones Partners are experts in the small to medium size business space. We understand the stress and anxiety that is often experienced by directors when their company is in financial difficulty.
by Bruce GleesonBankrupt Estate of Jerry Ren
/in Individual, Public Notices /by Rell ReynoldsAppointment Type:
Bankruptcy
Purpose of Notice:
Appointment as Trustee
Date of Appointment:
5 April 2018
Name of Bankrupt:
Jerry Ren
Alias:
Xiaofeng Ren
Appointee Name:
Bruce Gleeson
Contact Person:
Mr Alan Topp – atopp@jonespartners.net.au
Contact Number:
+612 9251 5222
Sydney Online Material Handling Liquidation
/0 Comments/in Insolvency Business Recovery Media Updates /by Rell ReynoldsDetails of sale:
Sale of goods from Forklift Warehouse
Under instructions from the Liquidator, Mr Bruce Gleeson of Jones Partners.
Buyers can bid from anywhere in Australia exclusively via PicklesONLINE. The start time for this auction is Thursday, 17 May 2018 at 9:00am AEST with the highest bidder determined at the close of bidding on Wednesday, 23 May 2018 at 8:00pm AEST.
Enquiries: Ryan Tyson 0478 314 521
https://www.pickles.com.au/trucks/auction/-/auctiondetails?sale_no=2004187
https://www.pickles.com.au/trucks/item/search/-/listing/listSaleItems/2004187#!/search-result?sort=Product_Type_Sequence
Bankruptcy & the Age Pension – Not all what it seems!
/in Blog /by Martin VuAs Bankruptcy Trustees, we are often asked to assist individuals of many and varied ages on personal insolvency options available to them. Individuals generally have differing financial circumstances and the advice provided needs to be considered on a case by case basis.
With Australia’s ageing population, we have received enquiries (and anticipate in the future the potential for an increase) regarding treatment of benefits and payments made under the Social Security Act 1991 (“SSA”) and other social security legislation in the context of the income contribution regime when the individual has to consider voluntary bankruptcy.
We have recently had a professional advisor who was seeking clarification as to whether receipt of a payment under the Pension Bonus Scheme would be able to be retained by their client in bankruptcy or whether it would form part of property available to a Bankruptcy Trustee. Whilst this Scheme is now closed (see below) it does serve as a timely reminder that there are many important considerations to be given when social security legislation is involved and it can be quite tricky – so it is important to get the right professional advice.
In 1998, the Federal Government passed the Social Security and Veterans’ Affairs Legislation Amendment (Pension Bonus Scheme) Act (“PBSA”). The legislation was designed to encourage older Australian who were eligible for the aged pension to remain in the workforce. As a reward for deferring their claim for the aged pension (and meeting various other conditions), they were entitled to a single, tax-free lump-sum pension bonus.
While registration for the Pension Bonus Scheme is now been closed, we were asked to consider whether such payment (if received) under the Pension Bonus Scheme to an individual after bankruptcy would be divisible or after-acquired property, or income when received.
Section 58 and Division 3, Subdivision A of the Bankruptcy Act (“the Act”) sets out property of a bankrupt that vests with a Bankruptcy Trustee and divisible among creditors. After-acquired property is taken to include all property that has been acquired by the Bankrupt after the commencement of Bankruptcy and before discharge. Property is given a wide definition under Section 5 of the Act to include personal property of every description.
Prima facie, in a situation where the pension bonus was received prior to bankruptcy and held in a bank account maintained by the bankrupt, it is likely that this sum would be divisible property. If the pension bonus was received after bankruptcy, a Trustee needs to consider the interaction of Division 3A of the Act with the income contribution regime contained in Subdivision 4C.
While Sections 58 and 116 of the Act were broad enough to encompass after-acquired income as property, such income is taken not to vest with the Trustee as it dealt with under the income contribution regime (Re Gillies [1993] FCA 289). Recent case law has clarified and not changed this position (Di Cioccio v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Di Cioccio) [2015] FCAFC 30).
Section 11(3C) of the SSA specifically exempts an individual’s entitlement to the pension bonus to be an asset of the person for the purposes of the SSA. The Schedule 1 of the PBSA states that “a pension bonus is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise”. Based on this legislation, it would appear that a person’s entitlement and receipt of a pension bonus would not be divisible property under the Act.
Section 139L(1) of the Act states that income of a bankrupt has its ordinary meaning which is derived from the Income Tax Assessment Act 1997 to encompass income that comes under the ordinary meaning of the word “income”. The Act and Bankruptcy Regulations also vary the definition of income to include and exclude various payments made to a bankrupt. Notably, Bankruptcy Regulation 6.12(1) exempts certain amounts as income if it is classified as not being income under Section 8(8) of the Social Security Act 1991 (with some exceptions). The pension bonus is a payment under Section 92 of the Social Security Act 1991 and when applying Bankruptcy Regulation 6.12(1) does not fall under the category of an exception to the definition of income.Taxation implications
Lump sum pension bonuses paid under SSA are tax-free and therefore no amounts can be deducted under Section 139N(1) of the Act when performing an income assessment.
Conclusion
Accordingly, in this particular situation, if the whole amount of the pension bonus was paid to the individual after the bankruptcy commenced, we believe it would be classified as income for the purposes of the Act.
This case highlights the need for Bankruptcy Trustees to be cognisant of the interaction of the Bankruptcy Act with other legislation and additionally that professional advisors and individuals understand the implications of the legislation on their specific circumstances.
Crowd Source Funding for Retail Investors. Good idea or the potential for them to be the new Ponzi scheme?
/in Blog /by Bruce GleesonThe Corporations Amendment (Crowd Source Funding) Bill 2016 is due to come into operation on 29 September 2017. Crowd Source Funding (“CSF”) continues to be a popular way that allows entrepreneurs/start-ups to raise funds from many investors. Until recently CSF in Australia has been aimed at “sophisticated” or “wholesale” investors. The above Bill effectively establishes a regulatory framework to facilitate CSF by small, unlisted public companies aimed at attracting retail investors.
There is no doubt that new funding models such as CSF which enable new ideas to get off the ground and fly and contribute to productivity growth are a good thing. However, I do see the potential for misuse and some comparisons to Ponzi schemes come to mind. What is a Ponzi scheme? Wikipedia describes this type of scheme as one where “the operator generates returns for older investors through revenue paid by new investors, rather than from legitimate business activities or profit of financial trading”. The analogy here is that the concept/assumptions around the business are overstated and/or further capital raisings being based on the potential for the product/service being overplayed.
Retail investors should apply the same scepticism, fundamental analysis and industry research they do to a company listed on a stock exchange before deciding whether to invest via the CSF platform. This also applies to other platforms such as kickstarter and others.
The fact that CSF is (or will be) typically done online and facilitates a large number of individual (or retail) investors to make small (but still important) financial contributions highlights the potential for mis-use. Retail investors need to absolutely accept that investing in start-ups or small businesses present high risks of financial loss. ASIC insolvency statistics confirm that the overwhelming number of corporate insolvencies are micro to small medium enterprises. As a Registered Liquidator, I see this frequently.
Whilst the regulatory framework in this Bill has been designed to balance the barriers for business seeking CSF with an adequate level of protection against risk and fraud for retail investors, only time will tell whether some CSF companies seek to take unfair advantage of this new form of funding. Some of the key requirements for those making a CSF offer are:
Relevantly the CSF offer generally will not need to be as detailed as a prospectus and other disclosure documents.
All CSF offers will need to be made via the platform of a CSF intermediary and such intermediary will be required to hold an AFSL – thus there are some in-built protections to the retail investor, but dangers still lay in the quality of the offer and the individuals standing behind it.
The maximum cap per retail investor is $10,000 in any 12 month period and there is a 48 hour cooling-off period. Retail investors should ensure they do their due diligence if they may be seeking to invest via such platforms and try to make an objective assessment of the investment risk versus return scenario. And importantly remember, the bigger the return, the bigger the risk.
by Bruce GleesonPhoenix Activity – Exposing Fraudulent Directors
/in Blog /by Bruce GleesonWhilst it is difficult to accurately determine the true cost of “phoenix activity” primarily due to a lack of relevant data, it has been estimated to cost the Australian economy in the vicinity of $3.2 billion per annum. (1)
What is phoenix activity? It essentially involves one company taking over the business of another company that is liquidated where the controllers of both companies are the same people or their associates. It is important to profile and understand phoenix activity to really understand how it needs to be deterred. In my opinion it is the illegal or “harmful phoenix activity” which has the most profound impact on the economy. Indeed in the recent case of Plutus Payroll which appears to have involved harmful phoenix activity, it is estimated that the loss to Government Departments (mainly the ATO) could be as high as $165 million.
Harmful phoenix activity left unchecked is not only anti-competitive, but also undermines Australia’s revenue base.
What is required to deter harmful phoenix activity? Whilst the list below is not exhaustive, it seeks to cover certain keys areas:
1. There needs to be an enhanced information system to detect and measure phoenix activity. To this end, there needs to be an overhaul of the current collection/reporting system by Registered Liquidators to ASIC. Better data capture will enable improved statistics/measurement of the true extent of the issue and also enable certain industries/individuals to be focussed on.
2. There also needs to be more effective sharing of information between State and Federal Regulators, as well as enhancing information sharing with allies such as credit reporting agencies and trade bodies.
3. Establish via ASIC a free online search acility that has a register of disqualified directors and associated companies.
4. Perhaps most importantly, the process to incorporate a company and become a director needs to be tightened.
• Presently it is easier to become a director of a company than it is to open a bank account. This has to change.
• Also, the registration of an Australian company only requires the name, address, and date of birth of each proposed officer. ASIC forms do not presently require or ask for prior corporate history of proposed directors and no supporting evidence is required about their identity.
Recent indications from Federal Government are that it may not be too long before a Director Identification Number (“DIN”) is introduced. This should be introduced without delay and require all directors to undergo a 100 point ID check to get a DIN. It should also be an online application. Whilst the DIN is not the complete panacea to counter “harmful phoenix activity”, it is a long overdue step in the right direction when done with points 1-3 above.
Importantly such changes will not mean that directors of a company should fear seeking professional advice as early as possible when they are in financial difficulty. Rather, the above is really focusing on the serious financial impact that “harmful phoenix activity” has on an economy.
(1) based on a 2012 PWC report.
by Bruce Gleeson
Bankruptcy and Family Trusts – Are They Still Effective?
/0 Comments/in Blog /by Bruce GleesonFamily Trusts have and will continue to be used into the future for a variety of purposes, in particular asset protection. Most Family Trusts notably have a Corporate Trustee. As a Registered Bankruptcy Trustee, I am quite often asked by individuals who may be a Director/Shareholder of the Corporate Trustee and/or a Beneficiary of the Family Trust (or discretionary trust) what happens if the individual goes into bankruptcy (either voluntary [themselves] or involuntarily [via the Federal Court])?
Ultimately it will significantly depend on the specific circumstances of each case and indeed the Trust Deed, but the Courts have for some time considered and will continue to exercise their minds about the extent to which Family Trusts may be impacted by the bankruptcy of a Director/Shareholder/Appointor or Beneficiary. This article examines a recent case which re-affirms that Family Trusts continue to be problematic for Bankruptcy Trustees to attack.
The case is Fordyce v Ryan & Anor; Fordyce v Quinn & Anor [2016] QSC 307 and judgement was delivered on 20 December 2016. The key facts can be summarised as follows:
• The Bankrupt was the sole Director and Shareholder of the Corporate Trustee company of the Fairdinks Discretionary Trust (“FDT”) and also the Corporate Trustee companies of Unit Trusts.
• FDT held all the units in one of the Unit Trusts and two-thirds of the units in the second Unit Trust. The major asset of both Unit Trusts was real estate.
• The Mortgagee of both Unit Trusts sold the real estate with the consequent effect that there were surplus funds available. The surplus proceeds were in excess of $200,000 in each Unit Trust.
• The Corporate Trustee for both Unit Trusts was deregistered and as such, the above surplus funds vested with ASIC – and ASIC effectively stepped into the shoes of the Corporate Trustee and either may have acted as Trustee or applied to the Court for the appointment of a new Trustee.
• FDT was as the name suggests a discretionary trust and had two (2) classes of beneficiaries. The Bankrupt was in the 2nd class of beneficiaries – being a general beneficiary.
• PRIOR to his bankruptcy, the Bankrupt who was CONTROLLING each of the Corporate Trustee companies of the Unit Trusts made distributions to the FDT and then in turn to him as a beneficiary of the Family Trust. The evidence for this was income tax returns of the various trusts.
• On 2 September 2015 the Bankrupt (Mr Michael Quinn) entered into bankruptcy and the Bankruptcy Trustee sought to recover the Bankrupt’s interest in the surplus assets of the Unit Trusts by applying to the Court to appoint Receivers so that the Unit Trusts could be wound up.
• The Bankruptcy Trustee submitted that the Bankrupt controlled the FDT and relied on the decision of the Federal Court in ASIC v Carey (No 6) (2006) 153 FCR 509 (“Richstar”) to argue that the Bankrupt’s interest amounted to property that had vested under Section 58 of the Bankruptcy Act. The Bankruptcy Trustee was also seeking to have Receivers appointed to the Unit Trusts as part of the application.
• Relevantly the Court determined that the FDT was purely a “discretionary trust” and therefore the beneficiary is not someone who has a property interest in the trust property. In doing so it stated that the “critical question is whether effective control of a Trustee’s power of selection can transform the interest of a beneficiary of a discretionary trust into property of the bankrupt”. In addition, the Court also commented “a trust once validly constituted does not change in nature because the Trustee and some of the beneficiaries subsequently choose no longer to abide by the obligations of the trust relationship”.
• The Court found that the Bankrupt’s right as one of the general beneficiaries of the FDT did not vest in the Bankruptcy Trustee as property of the Bankrupt per Section 58. The Court also dismissed the application insofar as appointment of the Receivers to the Unit Trusts were concerned.
This case shows how difficult it can be for Bankruptcy Trustee’s to successfully attack Family Trusts. Whilst the outcome will invariably come down to the specific facts of each circumstance, Family Trusts at least at this point appear to be the kryptonite equivalent to defeat bankruptcy trustee claims. However, I think it should be expected that this area will continue to be pressed where it is believed there may be a potential recovery for creditors.
Bruce Gleeson
Attitude & Corporate Insolvency Profiles 2016
/0 Comments/in Blog /by Bruce GleesonOne of my favourite Winston Churchill’s quotes is so relevant to directors and owners in Micro, Small and Medium Enterprises (“MSME”). That is: “attitude is a little thing that makes a big difference”.
In December 2016, ASIC released its annual overview of corporate insolvencies based on statutory reports lodged by external administrators (i.e. predominantly voluntary administrators and liquidators) for the 2016 financial year (see ASIC website 16-436MR).
Summarised in the table below are some key trends emerging from the collation of the data over the 2014, 2015 and 2016 financial years. Of particular note, is that MSME’s again dominate the corporate insolvency landscape.
Whilst it is acknowledged that this data may be somewhat subjective because it has been filed by the external administrator, the data has been collated over at least six (6) years and hence some of the trends are noteworthy and instructional for owners and advisors.
Typically in my experience as a Registered Liquidator, MSME’s are at a higher risk of failure not only in the early phases, but also at other pivotal periods. MSME’s quite often have a lack of key resources (particularly key people) and this can quite often become a major issue. Coupled with management not always having the “right attitude” the business can quickly be adversely impacted. Equally the opposite is true. It is not to say that management is not working hard, but it comes back to having the right strategy and attitude and executing on it.
MSME’s just like bigger companies must understand their key advantages and play to these, as well as continually re-evaluating and re-adjusting their business strategy as the business evolves. This is critical.
A key factor coming out of the ASIC release is that unpaid taxes account for approximately 65% of liabilities in the $250,000 or less category. This is not as surprising as some might think – but it does reveal a tendency for MSME’s to use the ATO as the lowest priority unsecured creditor. Remember directors can be personally liable for PAYG and SGC debts of companies in certain circumstances.
Relevantly in the 2016 MYEFO the Government announced its intention from 1 July 2017 to inform credit reporting agencies about the tax position of businesses that have not effectively engaged with the ATO where the debt is more than $10,000 and at least 90 days overdue. This aim is to encourage businesses to pay tax debts in a more timely manner. If this intention becomes reality, I expect that it will cause MSME’s difficulties if their tax affairs are not kept in good order.
So as we start 2017, I encourage directors and owners of MSME’s to review their business strategy with the right attitude and if things are not heading in the right direction to seek advice at the earliest possible time from a qualified and registered professional.
Jones Partners offers a complimentary free consultation if you would like to have a confidential discussion about your business.
Directors Vulnerable to Untrustworthy Advisors
/0 Comments/in Blog /by Bruce GleesonAs both a Registered Liquidator and Registered Bankruptcy Trustee, I quite often hear about the plight of a family company director or individual who is in financial difficulty being seduced by unlicensed or unregistered supposed professionals (also referred to as pre-insolvency firms) about how best to deal with their difficult financial position, yet only to end in a worse position both financially and emotionally after taking such advice.
Such seduction is akin to bait advertising that occurs both online and in other forms of media. It promotes a sense that everything will be sorted out and that the consequences will be very little. By advertising this way, it is effectively taking advantage of an emotionally vulnerable family company director or individual when what they really need is proper professional guidance.
Recently ASIC has commenced writing to directors of companies that are subject to a Winding Up Application to provide facts about untrustworthy advisors. Such communication is also a broader attempt by ASIC to curb phoenix activity which unchecked becomes a very real form of anti-competitive behaviour acting against those businesses that are genuinely trying to do the right thing.
What are some of the key signs of untrustworthy advisors? These were outlined in ASIC’s recent communication with certain directors and include:
Family company directors who believe their companies may be in financial distress (including having received a Winding Up Application) should contact sooner rather than later, a Registered Liquidator and resist the temptation to take “cold calls” from self-proclaimed specialists whose experience is often limited to being a former director of a company that went into some form of insolvency administration or a former bankrupt. In this regard, ASIC is currently looking at making it easier via their website for directors to find or locate a Registered Liquidator in their local area so they can get competent advice.
Directors ought to be aware that ASIC and the ATO have recently conducted raids across the country in a bid to crack down on “pre-insolvency firms” who have allegedly encouraged phoenix activities, tax avoidance and GST evasion. Typically I see these untrustworthy advisors surface when the ATO or other statutory bodies seek to commence a Winding Up Application against a company to recover monies owed. Upon receipt of the Winding Up Application, directors of the company are “cold called” by these untrustworthy advisors and promised an immediate solution to their problems by having the company placed in voluntary liquidation prior to the Winding Up Application being heard in court.
In my experience, the vast majority of family company directors endeavour to do the right thing however, they are vulnerable to being misguided by untrustworthy advisors who generally receive a considerable fee for what ultimately may be considered as poor advice. I expect that ASIC and the ATO will continue to focus on this area. As a Registered Liquidator with over 20 years experience, I am familiar with the sensitive and pragmatic manner in which financial difficulty needs to be discussed and options explored with directors and shareholders.
My message to family company directors and individuals who find themselves in this position is to not be tempted by these untrustworthy advisors, but rather review reputable sites like www.asic.gov.au and make sure they are speaking to a professional that holds the appropriate registrations as opposed to someone that just wants a “sale”. Importantly creditors are able to change a liquidator introduced via a pre-insolvency firm (as well as more generally). Thus some transactions that are said to be trouble-free are likely to in fact be the subject of a reversal if they are not dealt with properly.
Jones Partners offers an initial free consultation for Family company directors and individuals in financial difficulty so that they can be assured they are receiving the right advice about the options available to them.