Articles

Creditors of companies that fail are often shocked and angered by the ability of directors of the failed company to start up a new business and carry on as though nothing happened. They cannot accept that they are suffering because of the losses they are facing whilst the people they see as being responsible for the losses appear to suffer no ill effects. Who is at fault? It is important to note that the debt owed to the creditor is owed by the company, not the directors personally.  A limited liability company has its own separate legal identity and it is generally only when the directors have given personal guarantees in favour of particular creditors that they become personally liable…
Part 2 of 2   Following on from our earlier article dealing with how liens over company records are treated in a liquidation, we will now cover how liens are dealt with in receiverships and bankruptcies, and how to handle a lien held over the assets of the entity. Bankruptcy lien over records and documents Upon the adjudication of a bankrupt all of their property is vested in the Official Assignee under Section 101 of the Insolvency Act 2006.  For those records that are not in the possession of the Official Assignee a written request is made for their surrender under Section 171 of the Insolvency Act 2006.  This request encompasses any document that relates to the bankrupt's property, conduct,…
Workplace investigations can detect the source of lost funds, identify employee misconduct and possible culprits, as well as help recover losses.  They are usually undertaken when there is alleged employee misconduct, or a rumor of something amiss comes to the attention of the employer which requires action. Investigations must be undertaken in a fair and reasonable manner without bias. Investigations into employee misconduct can cause significant problems.  They can also be expensive, time-consuming and disruptive to organisational morale.  Investigations which are not conducted in an ethical and transparent manner, with the utmost care and confidentiality, can lead to a number of legal issues and other unexpected complications.  Well-done workplace investigations can provide a solid defence to legal challenges raised by…
The solvency test is not required to be met each day a company trades.  It is required for certain transactions including distributions and dividends and requires the company to demonstrate it can meet two tests.  These tests are the trading solvency/liquidity test and the balance sheet solvency test.   To satisfy the solvency tests, a company must be able to pay its debts as they become due in the normal course of business; and the value of its assets must be greater than the value of its liabilities (including contingent liabilities). One objective of the solvency test is to control all transactions that transfer wealth from a company.  In a liquidation context, where transactions have occurred when the company did not…
Part 1 of 2  Having a customer go into liquidation is never appreciated.  There is a potential loss of profit, and as such, creditors generally seek to secure and protect their situation through whatever means necessary. In a perfect world, the creditor will be secured by way of a perfected security interest under the Personal Properties Security Act 1999 that leads to gaining a super priority to recovery of equipment or to unpaid stocks and potentially a recovery from proceeds relating to those unpaid stocks.  However, often there is no security and no assets on liquidation. On occasion, however, the creditor will find themselves in possession of company assets and records over which they have no registered security, and the…
Last week's Supreme Court judgement on Jennings Roadfreight Limited (In Liquidation) has overruled an earlier Court of Appeal ruling and provided clarification on a legal grey area. The Supreme Court has decided in a unanimous decision that amounts due to the IRD rank behind liquidators, employees and Kiwisaver entitlements' to funds in a bank account at the commencement of a company liquidation. The history and details of the case are as follows.  JENNINGS ROADFREIGHT LIMITED (IN LIQUIDATION) and BORIS VAN DELDEN and PERI MICAELA FINNIGAN AS LIQUIDATORS OF JENNINGS ROADFREIGHT LIMITED (IN LIQUIDATION) v COMMISSIONER OF INLAND REVENUE Jennings Roadfreight Limited (Jennings) was placed into liquidation on 24 March 2011. Its liquidators are Boris van Delden and Peri Finnigan of…
It seems like a typically Kiwi thing to do - a couple of mates decide to go into business together and start up a company to operate the business.  Everything is split down the middle - each director owning 50% of the shares and all agreed on a handshake. What could go wrong? The recent liquidation of a small business shows just what can happen.  Things went well for the first couple of years.  Business was going okay and making a small profit but then things started to go wrong. The relationship broke down between the shareholders and got to the stage where they couldn't agree on anything to do with the business including staff management and business direction. Legal…
Cloud Software Claimed Users Xero 371,000 plus LinkedIn 260 million plus Dropbox 300 million plus Google – Email 500 million plus Increasingly, we are using the Cloud to create, manage and store documents, such as through Xero, LinkedIn, Dropbox and Google. However, the Cloud is unique in that control of the documents passes outside of your physical possession and onto someone else's computer, which is often overseas.   Consequentially, there are several issues that a business owner needs to be aware of.  - How secure is your data and how much control do you have over it once it is in the Cloud? Often, you will have no idea where the data is stored, you have no idea how the…
On 15 September 2014, insolvency and business recovery specialists McDonald Vague advised 288 former employees and unsecured creditors totalling $13.112 million that a total dividend pay-out of 100 cents in the dollar had been made to most of them. Given that this was a large corporate failure with initial unsecured claims in excess of $25 million this is a significant pay-out. Early on in the liquidation it looked like creditors would face a nil dividend.  The steps taken to achieve this result include: Engaging in, and winning, a significant arbitration award relating to DML's mining operations at Waihi. Establishing the unsecured creditors' position by disputing and settling several significant unsecured claims for amounts primarily owed by other companies related to…
There are approximately 500,000 small to medium-sized enterprises (SMEs) in New Zealand, most operating without a formal board.  Often there is no separation between family, management and governance. An increasing amount of our work at McDonald Vague is involved in providing independent reviews focusing on restructuring and governance with the aim of helping companies lay the foundations to grow in to larger, more profitable businesses and avoid the mistakes we see time and time again.  Why an independent review? Typically, the need for an independent review is initiated when a particular issue or concern is identified.  This can provide an opportunity to introduce a sound corporate governance process that can not only solve the issue or concern itself, but set…
Did you know that not using the Personal Property Securities Register (PPSR) could expose your business to unnecessary risk?  Despite the fact that the online register celebrated its 10th anniversary in May this year, a surprising number of small business owners are not aware of the reduced financial risk that comes with registering security interests on the PPSR.  Registering your security interest on the PPSR may give you a better chance of recovering a debt if your debtor defaults. (Note:  Suppliers of stock need to register before delivery and suppliers of equipment need to register within 10 working days of delivery).  What a lot of people don't realise is registering on the PPSR is a valid defence against Insolvent Transaction…
Statutory demands - minimising bad debts is critical for any business  Debt collection is difficult for business owners.  Pursuing bad debts early on improves any chance of receiving payment.  A creditor that puts the most pressure on a debtor will most likely receive their money before others; however, they need to be conscious of the voidable transaction regime when they are dealing with an insolvent company.  If you are owed a debt and that debt is not in dispute and you suspect the company you have been trading with may be insolvent, you can issue a statutory demand against the company.  Depending on your terms of trade, a statutory demand will require the debtor to pay you the outstanding debt,…
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