The Solvency Test
The Companies Act 1993 requires directors to focus on the financial state of the company and to consider whether the company meets the solvency test before permitting distributions and certain other actions by the company.
The statutory Solvency Test is set out at section 4 of the Companies Act 1993. The Solvency Test requires that both the liquidity limb and the balance sheet limb of the test are satisfied immediately after a distribution or other action. Distributions are widely defined and include the direct or indirect transfer of money or property and incurring a debt for the benefit of shareholders.
In making a distribution, directors who vote in favour of the distribution must sign a solvency certificate confirming that, in their opinion, the company satisfies the Solvency Test immediately after the distribution is made. The relevant date for assessing solvency is the date of the resolution and not the transfer date of funds.
The company must be able to pay its debts as they become due in the normal course of business.
The nature of the business of the company must be taken into account. A liberal interpretation is to achieve the liquidity limb, debts are paid before creditors become threatening.
Balance Sheet Limb
There is a requirement that the value of the company’s assets is greater than the value of its liabilities, including contingent liabilities.
This limb causes some concern because of the complexity with assessing what the company’s assets and liabilities are and the basis they should be valued. It is necessary to look ahead to after the distribution has been made, to ensure that the assets will still exceed the liabilities.
This is often complicated when companies have kept poor financial records.
What Directors must consider when determining value
Directors should have regard to;
(i) the most recent financial statements of the company.
(ii) all other circumstances which the directors know or ought to know affect the value.
Directors may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances. When assessing contingent liabilities, the likelihood of occurrence of the contingency and opportunity for the company to offset the contingent liability by way of a counter claim, may be taken into account.
The Solvency Certificate
Directors who vote in favour of a distribution must sign a solvency certificate. The certificate and procedure should address:
- the appropriateness of the latest accounts
- the existence of contingent liabilities and the likelihood of any contingency occurring
- whether any claims exist to offset the contingent liability
- any special trade factors or circumstances which “ought to be known” by the directors
- assessment of what valuations or estimates are necessary or appropriate
The certificate and procedure is a formal record to show that the directors have acted properly and considered all the appropriate matters in making their assessment.
Directors need to act in good faith and make proper enquiry and may rely on reports, statements and financial information prepared by staff, professionals, experts, and advisors who the directors believe to be competent so long as they have no knowledge that such reliance is unwarranted.
A company cannot issue a solvency certificate while it remains insolvent.
Application of Solvency Test
The Companies Act requires the Solvency Test to be considered for;
- buyback of shares or reduction of equity
- financial assistance in connection with the purchase of the company’s own shares
- minority buyouts
- shareholder discounts / shareholder forgiveness of debt
- the unfair prejudice remedy
- payment or guarantee of shareholders’ outside debt
Recovery of Distributions
If a distribution is made to a shareholder and the Solvency Test is not satisfied after the distribution is made, then the moneys may be recovered from the shareholder except where the shareholder receives the distribution in good faith without knowledge that the Solvency Test is not satisfied.
A director is personally liable for the repayment of the distribution if the director unreasonably fails to follow the statutory procedures S56(2)(a) and (c) or if the director signs the solvency certificate authorising a distribution when there were no reasonable grounds to believe the solvency test was satisfied S56(2)(b) and (d), or did not take reasonable steps to prevent a distribution once becoming aware, S56(3) and S56(4).
A director is only however liable to repay the company to the extent that the distribution is not able to be recovered from the shareholders. The Court may relieve a director from full liability under S56(5) if the Court is satisfied that the company could have by making a distribution of a lesser amount, satisfied the solvency test. Case Law has not established a strict arithmetical approach to this.
This reiterates the need for appropriate procedures to be established by a company and its directors to ensure distributions are not clawed back or that directors face personal liability.
Directors may be fined where they act in a false or misleading way and can be held liable and face up to 5 years imprisonment, or to a fine not exceeding $200,000.
In our capacity as liquidators of insolvent companies we are often required to consider if shareholder distributions should be clawed back, and/or if directors are liable for repayment of distributions. These potential director actions are good reason to understand the importance of the Solvency Test and procedures under the Companies Act 1993.
If you are an advisor to a company that is insolvent or fails the solvency test, then it is important to make your client aware of the following provisions of the Companies Act 1993 and the possible consequences.
Section 135: A director must not allow the business of the company to be carried on in a manner likely to create a substantial risk of serious loss to the company’s creditors.
Section 136: A director must not agree to the company incurring obligations unless the director believes at that time, on reasonable grounds, that the company will be able to perform the obligations.
If you require assistance in establishing the appropriate compliance procedures for the Solvency Test or have any general questions on the Solvency Test or other aspects of the Companies Act 1993, please do not hesitate in contacting the directors or senior staff at McDonald Vague.