Business Advisory and Insolvency

We take a holistic approach to providing legal advice on all our matters. For example, for one of our mining services clients, we:

• Assessed their business and personal needs and goals.
• Developed a strategy to achieve continuity of trade.
• Appealed and settled a Construction Contracts Act dispute.
• Negotiated with creditors to forbear from taking action to allow time to implement our strategy.
• Negotiated with financial institutions and introduced our clients to financiers that were willing to lend when the banks weren’t.
• Liaised with insolvency practitioners.
• Continually reviewed and adjusted our strategy.
• Reviewed existing contractual arrangements.
• Assisted the director with the sale of the business, at market value, from one entity to another (including the taking-on of all accrued employee entitlements), allowing the director to continue to operate the business in the new entity and avoiding cessation of trade, avoiding unemployment, avoiding damages claims by contractors for unfinished works, and maximising the return to creditors.
• Engaged in various negotiations with Liquidator.
• Negotiated payment arrangements on behalf of the director in respect of alleged guarantee creditors in order for the director to avoid bankruptcy.
• Defended claims by the liquidator, including a demand for payment of a significant alleged director loan account in order for the director to avoid bankruptcy.

We have provided insolvency advice services to a number of clients, advising them on the best trading structures to allow continuity of business and to protect the family home against future insolvency events.

Many of our clients have a potentially viable business but have encountered unfortunate circumstances. For example, a major debtor has failed to pay an account, a director or key employee has fallen seriously ill, the business has grown at an unsustainable pace, or the business hasn’t been proactive or reacted quickly enough to changes in the market.

In many cases, these clients are able to carry on business on a smaller scale or under a different structure with our assistance. We assist our clients to sell their business, at market value, to a third party or a related party to avoid cessation of business, with the benefit of:

• Continuation of employment for employees and transfer of employee entitlements.
• Avoidance of major customer/client contract termination.
• Appearance of “business as usual”.
• Better return for creditors than would be achieved in liquidation.

We have successfully assisted numerous clients that have attempted a DIY restructure. For example, one client had transferred assets between three companies, in preparation of sale of one of the companies (that did not eventuate), and the accounts of the companies were a spider’s web of intercompany credits and debits.

We successfully:

• Determined the intention of the parties at the time of the transfer of all of the assets.
• Assisted our clients in obtaining retrospective valuations.
• Formalised the sale of assets between the companies.
• Formalised the vendor finance arrangements between the companies.
• Formally assigned debts from one company to another.
• With the assistance of the client’s accountant, determined the true position of the intercompany loan accounts and established that the vendor finance arrangements had been satisfied.
• Assisted the directors in placing one of the companies that had ceased trading into liquidation.

There are some situations where Liquidation or Bankruptcy is inevitable. In those circumstances, we assist our clients by explaining processes and obligations, completing complicated paperwork and generally liaising with the Liquidator or Bankruptcy Trustee to ensure a smoother process.

We regularly deal with the ATO to obtain:

• Agreement to forbear from taking further action (in one case for up to 6 months) to allow time for fundraising.
• Instalment arrangements (even in circumstances where there have been previous defaults).
• Remission of GIC and penalties.
• Release from liability on hardship grounds.

We have successfully defended and/or settled a large number of claims by liquidators against directors, including insolvent trading claims, preference claims and demands for repayment of drawing/loan accounts.

We have successfully negotiated numerous instalment arrangements, with the ATO and other creditors, including for one client that was able to avoid bankruptcy despite failing to lodge tax returns for 10 years, having at least one expired DPN and the ATO commencing Court action.