Directors and Liquidators both have rights and duties following a formal liquidation appointment. We address the rights and duties of directors in this article.
Rights of Directors following a Liquidation:
1. Right to Information: Directors have the right to access information and records about the liquidation process and the company's financial affairs. This includes access to the liquidator's reports, financial statements, and other relevant documents.
2. Right to Participate: Directors may participate in meetings of creditors and have the right to raise questions or concerns about the liquidation process.
3. Legal Advice: Directors have the right to seek legal advice and representation to protect their interests and understand their obligations during the liquidation process.
Duties of Directors to the Liquidator:
Directors have certain duties to cooperate with the liquidator during the company's liquidation. These duties are designed to ensure transparency, accuracy, and efficiency in the winding-up process:
1. Duty to Deliver Company Records: Directors are required to provide the liquidator with access to all company records, books, and documents. This duty aims to ensure that the liquidator has accurate information about the company's financial position and affairs.
2. Duty to Assist Liquidator: Directors are obligated to assist the liquidator in their investigations and inquiries. This duty includes providing information about the company's transactions, assets, liabilities, and financial history.
3. Duty to Attend Examinations: Directors may be required to attend public examinations if ordered by the court. Public examinations are sessions during which directors and officers of the company are questioned under oath about the company's affairs.
4. Duty to Disclose Information: Directors must disclose any property or assets that were transferred or disposed of with the intention of defrauding creditors within a certain period before the liquidation commenced.
5. Duty Not to Impede Liquidation: Directors are prohibited from taking actions that would hinder or obstruct the liquidation process, such as transferring assets out of the company or dissipating company funds.
6. Duty to Provide a Statement of Affairs: Directors may be required to provide a statement of affairs to the liquidator. This statement includes details about the company's assets, liabilities, creditors, and debtors.
It's important for directors to be aware of these duties and to cooperate fully with the liquidator to ensure compliance with the law. Failure to fulfill these duties can have legal consequences. Directors who have concerns or questions about their rights and responsibilities in a liquidation or who require advice on appointing liquidators contact our team.
A liquidator in New Zealand is appointed to wind up the affairs of a company that is insolvent or otherwise unable to pay its debts. Liquidators can also be appointed to solvent companies for formal closure. The liquidator's role is to realize the company's assets, distribute them to creditors, and ultimately dissolve the company.
There are key rights and powers typically granted to liquidators in New Zealand:
1. Investigation Powers: Liquidators have the authority to investigate the company's affairs, transactions, and financial records to determine the company's financial position, assets, liabilities, and any potential wrongdoing.
2. Recovery and Collection: Liquidators can recover and collect assets that are part of the company's estate, including pursuing legal actions to recover funds owed to the company.
3. Disposition of Assets: Liquidators can sell or otherwise dispose of the company's assets in order to generate funds to pay creditors. This may involve selling assets through auctions, tenders, or private sales. This can include sale of a part of the business as a going concern.
4. Avoidance Transactions: Liquidators have the power to set aside certain transactions that occurred before the liquidation if they are deemed to be "voidable transactions," such as preferences or transactions at undervalue.
5. Summon Witnesses: Liquidators can summon witnesses and require them to give evidence and produce documents relevant to the liquidation process.
6. Public Examination: Liquidators can apply to the court to have certain individuals, including directors and officers of the company, publicly examined regarding the company's affairs.
7. Distribution of Funds: Liquidators have the responsibility to distribute the realized funds to creditors in accordance with the statutory priorities.
8. Reporting: Liquidators are required to provide regular reports to the creditors and to the Official Assignee, including financial statements, investigations, and progress reports.
The rights and powers of a liquidator can vary based on the specific circumstances of the company and the applicable laws and regulations. For a solvent company much of the powers are not called upon. For an insolvent company, the circumstances will dictate what powers are used. For the most accurate and up-to-date information on the rights and powers of a liquidator in New Zealand, contact one of our team.
In corporate insolvency, two common terms often arise: liquidation and receivership. For businesses facing financial distress in New Zealand, it is helpful to understand the distinctions between these two processes. To gain an understanding we explore the disparities between liquidation and receivership, shedding light on their respective implications and outcomes.
Liquidation, also commonly referred to as winding up, is a formal process that leads to the dissolution of a company. It is typically employed when a company is no longer able to pay its debts and is deemed insolvent. It is also used by solvent companies that have made capital gains and seek to distribute the capital gain tax free on liquidation. The objective of liquidation is to realize the company's assets, pay off its debts to the greatest extent possible, and ultimately distribute any remaining funds to the shareholders. In a solvent liquidation this is paying creditors fully and distributing capital gains tax free on liquidation.
1. Appointment of a Liquidator: When a company enters liquidation, a liquidator is appointed. The liquidator's primary role is to gather and sell the company's assets, settle its outstanding debts, and distribute any remaining funds to creditors and shareholders in accordance with the priority set by law.
2. Voluntary Liquidation: occurs when shareholders resolve to wind up the company, typically due to financial difficulties. This requires a 75% majority in number/value of shareholders. Court appointed liquidation, on the other hand, is initiated by external parties, such as creditors, through a court order.
3. Court Liquidation, on the other hand is initiated by external parties, such as creditors, through a court order.
4. Ceasing Operations: Upon commencement of the liquidation process, the company ceases to operate. The liquidator takes control of its affairs, sells off assets, and wraps up any outstanding business. Sometimes the company is traded to be sold as a going concern.
• Loss of Control: In liquidation, the company's management loses control, and the liquidator assumes responsibility for its affairs.
• Dissolution: Liquidation ultimately leads to the dissolution of the company, ceasing its existence as a legal entity.
• Job Losses: Liquidation often results in the termination of employment for company employees, unless the business or certain assets are sold and continue operating under new ownership.
• Creditors in an insolvent liquidation are not paid fully and are faced with bad debts. Some then pursue personal guarantees.
Receivership is a process designed to safeguard the interests of secured creditors who hold specific charges or security over a company's assets. It is initiated when a company defaults on its obligations to the secured creditor, and the creditor exercises its right to appoint a receiver to recover the debt owed.
1. Appointment of a Receiver: When a company is placed into receivership, a receiver is appointed by the secured creditor. The receiver's primary role is to take control of the company's assets, manage them, and use the proceeds to repay the debt owed to the secured creditor.
2. Priority of Secured Creditors: In receivership, the secured creditor who appointed the receiver generally has priority over other creditors in terms of repayment. Specific security holders however have a super priority. Preferential creditors such as Inland Revenue and employees are entitled to be paid ahead of general security holders from unencumbered stock / debtor realisations. The receiver's primary duty is to act in the interest of the secured creditor and maximize the recovery of the debt owed to them.
3. Continuation of Operations: In some cases, a receiver may continue operating the business with the objective of maximizing its value and ensuring a higher recovery for the secured creditor. However, if the receiver determines that it is not viable to continue operations, they may opt to sell the company's assets to repay the debt.
• Limited Scope: Receivership is limited to securing and realizing the assets held as security for the specific creditor's debt. It does not encompass the broader dissolution of the company. Often a company that faces receivership later faces liquidation.
• Focus on Secured Creditor's Interests: The receiver works exclusively in the best interest of the secured creditor who appointed them, aiming to maximize the recovery of the debt owed to that creditor (and also accounting to specific security holders and preferential creditors). Other creditors may have limited or no access to the assets being managed by the receiver.
• Potential for Business Continuity: Unlike liquidation, where the company ceases to operate, receivership may allow for the continuation of business operations, depending on the receiver's assessment of viability and potential for maximizing the recovery of the debt.
• Less Impact on Employees: In receivership, the focus is primarily on the assets and debt owed to the secured creditor. While there may be some impact on employees, such as restructuring or downsizing to improve the company's financial position, the goal is to preserve the value of the assets and maintain ongoing operations.
• While both liquidation and receivership are insolvency processes, they differ in their scope, objectives, and implications:
• Purpose: Liquidation aims to wind up and dissolve the company, settling debts and distributing remaining funds to creditors and shareholders. Receivership, on the other hand, focuses on recovering the debt owed to a secured creditor by managing and maximizing the value of specific assets.
• Appointment: In liquidation, a liquidator is appointed either voluntarily by the shareholders or through a court order and sometimes if the constitution states, by the board of directors. In receivership, a receiver is appointed by a secured creditor exercising their right to recover their debt under their security documentation.
• Control and Continuity: Liquidation results in the loss of control for the company's management, with the liquidator taking charge of the assets. In receivership, the receiver manages the assets, but there may be a possibility of continuing business operations to maximize the recovery for the secured creditor.
• Impact on Employees: Liquidation most often leads to job losses as the company ceases operations. In receivership, the focus is on the assets and debt owed to the secured creditor, although there may be some impact on employees if restructuring is necessary.
• Understanding the differences between liquidation and receivership is crucial for businesses in New Zealand facing financial distress. While liquidation involves winding up the company and distributing funds to creditors and shareholders, receivership is focused on protecting the interests of secured creditors and maximizing the recovery of specific debts.
We all know it’s frustrating not being paid. What’s worse is that not getting paid affects your cash flow and chasing bad debts takes time that could otherwise be spent doing productive work.
If you decide that your best option for resolving the debt is to liquidate the debtor company, the process generally takes at least three months. There are a number of milestones along the way, which are outlined below.
Provided the debt is not disputed, the first step is to issue a statutory demand. The purpose of the statutory demand is to test the company’s solvency – the presumption being that, if the company is solvent and the debt is not in dispute, the company will pay the amount demanded in the statutory demand.
A company who receives a statutory demand has 10 working days from the date of service to apply to the High Court to set it aside, usually on the basis that the debt is disputed and/or the debtor company is solvent. If no setting aside application is made, the debtor company has 15 working days to pay the amount demanded in the statutory demand.
If the debtor company does not pay the amount demanded within the 15 working day timeframe, there is a legal presumption that the company is insolvent (which can be overcome if the company provides proof of solvency). The creditor can issue liquidation proceedings relying on the presumption of insolvency as the basis for its liquidation application for 30 working days from the date that the statutory demand expires.
When the liquidation proceedings are filed in the High Court, a hearing date is given. While the time between filing the application and the allocated hearing date can differ from Court to Court (if the Court is outside Auckland, Wellington, or Christchurch, the hearing date will need to coincide with the judges’ circuit sittings), the hearing date is usually between two and three months after the date of filing.
Once the processed documents are provided, they must be served on the defendant company. The application for liquidation also needs to be advertised in the paper where the company carries on business and the New Zealand Gazette. The advertising must be run at least five working days after the defendant company is served and at least five working days before the liquidation hearing date.
If the defendant company takes no steps in response to the liquidation application, the defendant company will be placed into liquidation by the High Court on the hearing date and the creditors’ nominated liquidators will be appointed. If the creditor does not produce a consent to act from its nominated liquidators at or before the hearing, the Official Assignee will be appointed as liquidator. If someone appears at the hearing on behalf of the company, the High Court can allow the proceeding to be adjourned (usually to allow time for settlement discussions or for payment of the debt to be made).
Creditors other than the creditor who brought the liquidation proceedings can appear at the liquidation hearing as either a creditor in support or in opposition to the liquidation application. If you are a creditor in support and the creditor who brought the liquidation proceedings decides to discontinue its proceeding (usually because some arrangement as to payment has been made), you can ask to be substituted as plaintiff. A substituted plaintiff can continue with the previous creditor’s liquidation application instead of having to start a new liquidation application and preserves the filing date of the application, which is used for calculating time periods for voidable, undervalue, and related party transactions.
If you are a creditor and want to discuss the liquidation process further, give our Licensed Insolvency Practitioners on 09 303 0506.
February saw another lift in the Official Cash Rate by 50 basis points, with a further 75 basis points expected to be added this year. The language from the reserve bank indicated that they had not seen the expected signs in inflation pull back and were continuing on their chosen path from 2022 to get inflation under control as quickly as possible.
The extreme weather events experienced in January continued into February with considerable damage to parts of the North Island. While the immediate effects have been considerable in certain areas the long term effects and costs will have wide reaching repercussions as additional spend will be necessary and likely increase demand on limited supplies and pressure on inflation figures.
February's company insolvency figures are slightly above those of the past two years. The breakdown in the types of appointment is where the real difference can be seen with court liquidation making up 47 of the 134 total appointments. This is above the 2021 and 2022 levels, more in line with 2020’s February court liquidation numbers before Covid and lockdowns became an issue.
Receiverships saw an increase with 8 for the month returning to levels not seen since 2020. What we can take from this along with the court appointments is that while there remain shareholder appointments there has been an increase in creditors (including IRD) taking action against derelict debtors either through winding up applications or secured creditors appointing receivers under their financing documents they hold against company assets.
February has shown growth on the elevated levels displayed in January 2023. The corporate winding up applications portion of total applications have remained above the IRD share of the applications for the second consecutive month. Traditionally IRD may take a few months to warm up following the Christmas break with their winding up applications as staff return to the office. It is normally from March onwards that IRD applications track up to exceed the corporate applications. Of interest the 64 winding up applications seen in February 2023 have exceeded 2/3rds of the monthly totals in 2022 and 5/6th of the 2021 monthly applications.
For another month personal insolvency stats continue their downward track to under 50 total in January 2023. While corporate insolvencies continue to move upwards this is not yet reflected in the personal insolvency stats. Over time the corporate stats increasing will likely flow through to personal insolvencies as personal guarantees get called up and collections actions continue. This has not happened yet but may increase as 2023 progresses.
If you're running a struggling business, you may feel overwhelmed and unsure of what steps to take next. It's a tough situation, but it's not uncommon, and there are options available to help you get out of it.
The first step is to assess the situation and identify the root causes of your business's struggles. This may involve reviewing your financial statements, identifying your cash flow issues, and analyzing your operations to pinpoint areas of inefficiency or waste. Once you have a clear understanding of the problems, you can begin to develop a plan to address them.
One option for getting out of a struggling business is to consider restructuring. This may involve renegotiating your debts with creditors, selling assets, or downsizing your operations. A restructuring plan can help you get back on track by reducing costs and improving cash flow.
Another option is to consider a business sale. If you're unable to turn your business around on your own, selling your business to a buyer who has the resources and expertise to take it to the next level may be a good option. This can also help you avoid the stress and financial burden of continuing to operate a business that is struggling.
If restructuring or selling your business are not viable options, you may consider a formal insolvency process. This may involve liquidation or voluntary administration. A liquidation involves winding up the affairs of the business and selling its assets to pay off creditors. A voluntary administration involves appointing an administrator to manage the affairs of the business while a plan is developed to address the financial difficulties.
At McDonald Vague, we understand the challenges that come with running a struggling business. Our team of insolvency practitioners can help you navigate the process and develop a plan to get out of the situation. We can provide guidance on restructuring options, assist with the sale of your business, and provide support throughout the insolvency process.
Don't let a struggling business drag you down. Contact us today to discuss your options and find a way forward. With the right plan in place, you can get out of a struggling business and move on to better opportunities.
If your business is struggling with debt and financial difficulties, you may be considering liquidation as a way to address your problems. However, liquidation is not always the best option for every business. Before making any decisions, it's important to consider all the available options and seek professional advice from experienced insolvency practitioners like McDonald Vague.
Liquidation is a process by which a company's assets are sold to pay off debts to creditors, and the company is then dissolved. While it may seem like a quick solution to financial problems, it can have serious consequences for the company's directors, shareholders, and employees. It's important to understand the potential implications of liquidation before deciding whether it's the best option for your business.
One alternative to liquidation is a voluntary administration, which is a process that allows a company to restructure its debts and operations while continuing to trade. Voluntary administration may be a better option for a business that is experiencing temporary financial difficulties and has the potential to return to profitability with the right management and support.
Another option is a formal or informal compromise, which involves negotiating with creditors to reach a settlement on the company's debts. This can be a less expensive and less disruptive option than liquidation, and can help preserve the company's reputation and relationships with its customers and suppliers.
Ultimately, the best option for your business will depend on a variety of factors, including the nature and amount of your debts, the company's assets and liabilities, and the potential for future profitability. It's important to seek professional advice from an experienced insolvency practitioner who can help you evaluate your options and make an informed decision.
At McDonald Vague, we have the expertise and experience to help you determine the best course of action for your business. We can provide you with a clear and objective assessment of your situation, and help you explore all the available options. We can also assist you with voluntary administration, formal or informal compromises, or other alternatives to liquidation, if appropriate.
Don't wait until it's too late to seek help for your struggling business. Contact us today to discuss your options and get the expert advice you need to make the right decisions for your business.
Inflation has remained constant in the final quarter of 2022 at 7.2 the same as at the end of the third quarter in 2022, it is still down from the 7.3 high point seen during 2022. While economists and the Reserve Bank were hoping for a drop this factor will be weighing on the Reserve Banks mind in its ongoing fight against getting inflation back to its 1%- 3% target band. While other developed countries across the world begin to see inflation coming under control we are not yet there in New Zealand.
Coupled with the elevated inflation we have business confidence at all-time lows as seen in surveys run at the end of 2022 and through January 2023, signalling that businesses do not have high hopes for the coming year, and we are likely to see businesses struggle throughout 2023. We have seen unemployment figures rise 0.2% with the latest quarters data being released, however staffing pressures in certain industries remain. Coupled with the extended fuel levy relief through till June 23 that will likely continue to provide some relief to the cost of living crisis.
The next Official Cash Rate review is on 22 Feb 2023 where we will likely see a rise of up to 75 basis points with a number of commentators now predicting a 50 basis point rise. With up to 50% of mortgage holders coming off lower fixed rates in the next 6 months the affect of these OCR lifts continue to be felt by consumers as interest rates double and in some cases triple.
While January is normally a slow news month the change of PM has given the media something to report on along with its increase in personal and corporate insolvency reporting that has also seen an uplift over the Christmas break, particularly if the business operated in the construction sector. In an election year these failing businesses and cost of living crises will likely play a part in election promises by the various parties and how they will mitigate the fallout to the wider economy.
December’s figures while not as high as November, were typical for the month with less work days in the month due to the Christmas break, the levels seen however were above both the 2020 and 2021 December figures. January on the other hand has started the month with appointments in line with earlier years with no court appointments for the month and professional advisors on leave appointment figures remain low. How the recent floods across the north island remains to be seen with businesses losing substantial stock to water damage and some areas (Coromandel) blocked off to visitors due to slips tourism will likely be affected.
From a yearly point of view total appointment figures for 2022 exceeded the 2020 and 2021 appointments. While there was a slight increase in voluntary administrations in 2022 and a reduction in receiverships the bulk of the new appointments came through shareholder insolvent appointments. Court appointments for the year remained in line with prior year ratios.
December winding up figures saw the traditional seasonal drop. January however exceeded the prior 2 years winding up applications.
December’s corporate applications have remained similar to prior year’s figures, it is the IRD applications that have picked up and continued to rise in January. While IRD has a backlog of derelict debtors how far their recovery collections will continues into 2023 as an election year is yet to be seen.