"Defining and
Profiling Phoenix Activity (December 2014)"
by Associate Professor Helen Anderson, Professor Ann O’Connell,
Professor Ian Ramsay, Associate Professor Michelle Welsh and Hannah
Withers of the University of Melbourne Law School and the Monash
Business School. "The concept of phoenix activity broadly centres on the idea of a
second company, often newly incorporated, arising from the ashes of its failed predecessor where
the second company’s controllers and business are essentially the same. It is important to note
that phoenix activity can be legal as well as illegal. Legal phoenix activity covers situations
where the previous controllers start another similar business when their earlier entity fails in
order to rescue its business. Illegal phoenix activity involves similar activities, but the intention
is to exploit the corporate form to the detriment of unsecured creditors, including employees and
tax authorities.
"
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"Worldwide Survey
on Taking Security over Personal/Moveable Property and Collateral"
by Interlaw Banking and Finance Special Business Team, March 2015.
Extract from Introduction: "Interlaw Ltd., an Elite* global law firm
network, is delighted to present this survey of how practices differ
across the world when a lender takes security or collateral over
moveable property. Terminology can be an issue here - some talk of
"security", others of "collateral" or "charge"; some call the assets in
question "moveable", others talk of "personal property"; and that's
before we bring other languages into consideration. By whatever name
called, we're considering taking security for finance over such things
as vehicles, plant and equipment, receivables, contractual rights - in
other words both tangibles and intangibles, but generally not land and
buildings. With the globalisation of commerce and finance, it is of
vital importance to lenders and other financiers to understand that the
opportunities for taking collateral in their home jurisdictions may not
exist in other jurisdictions or indeed that they may be greater in other
jurisdictions. While no one can be an expert in all jurisdictions, it
will be helpful to have some advance feel for what might be on offer
elsewhere. This survey has been prepared by Interlaw Member law firms
that participate in the network’s Banking and Finance Special Business
Team. It is written in in layman's terms for the finance professional."
|
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or
at Interlaw site |
"Phoenix Activity
and the Liability of the Advisor" - by Helen Anderson and
Linda Haller
[2014] SydLawRw 21; (2014) 36(3) Sydney Law
Review 471
Abstract: "This article explores the liability of
professional advisors such as lawyers, accountants and insolvency
practitioners in giving advice to company directors in relation to
fraudulent phoenix activity. It looks at the losses caused by such
activity, and the nature and deficiencies of the current regulatory
response. The Supreme Court of New South Wales decision in ASIC v
Somerville is examined in detail, with questions asked about the utility
of this decision in terms of both general deterrence and in providing
clear guidance to the legal profession as to what constitutes acceptable
advice in the business rescue context. Recommendations are made about
ways to improve this situation."
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"AMWU's submission to 2013 Senate
Inquiry into the performance of the ASIC, focussing on phoenix
activity."
|
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"ASIC's power
to wind up abandoned companies"
> ASIC Consultation Paper 180. Issued 12 July
2012.
|
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"Bankruptcy and Insolvency"
> extract from book published by Oxford
University Press > June 2011
|
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| "Directors' Disqualification: Room
for Improvement" by the Association of Business
Recovery Professionals, United Kingdom > November 2010 |
Click Here |
| "CRIME
STATISTICS ON COMMON INSOLVENCY OFFENCES BY COMPANY OFFICERS"
by Peter J
Keenan > December 2010 |
Contact us |
| Action against fraudulent phoenix
activity. Australian Taxation Office (ATO)
Proposals Paper. Issued November 2009.
This
discussion paper provides an overview of the problems that
fraudulent phoenix activities cause in the collection of tax revenue and
other employee entitlements. It then presents a range of proposals for
the taxation and corporations laws to address them while at the same
time not impacting on legitimate business failures. |
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|
Existing mechanisms to address fraudulent phoenix activity in
Australia's Corporate Law Regime.
This paper
was issued in November 2009 as an annexure to the ATO's discussion paper
"Action against fraudulent phoenix activity". |
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| Duty to prevent insolvent trading:
Guide for directors. ASIC Consultation Paper
124. Issued November 2009. Includes draft regulatory
guide that sets out the key principles that ASIC considers directors
need to take into account in order to comply with their duty to prevent
insolvent trading, and that provide guidelines on how ASIC will assess
whether a director has beached his or her duty. |
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|
Performance Audit - ASIC's Processes for Receiving
and Referring for Investigation Statutory Reports of Suspected Breaches
of the Corporations Act 2001 The
Auditor - General, Audit Report No.18, 2006–07, Australian
National Audit Office , 2007. |
Click Here |
|
ASIC's Processes for Receiving and Referring for
Investigation Statutory Reports of Suspected Breaches of the
Corporations Act 2001,
Australian National Audit Office, 2006 |
Click Here |
| Deeds of company arrangement
involving a creditors’ trust. ASIC guide for
registered liquidators appointed under Part 5.3A. May 2005 |
Click Here |
| Code of Professional Practice for
Insolvency Practitioners (FINAL).
The sections of the Code on Remuneration and
Independence came into effect on the 31st December 2007. The balance of
the Code commenced on 21 May 2008. |
Click
here |
| Code of Professional Conduct for
Insolvency Practitioners.
Approved and published by
the Insolvency Practitioners Association of Australia on
14 December 2007.
Note: This follows the draft code issued in September 2007 (see
below). |
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| Draft Code of Professional Conduct for
Insolvency Practitioners. Published by the
Insolvency Practitioners Association of Australia as a draft for comment
(September 2007). Note:
Superseded by the Code approved on 14 December, 2007 (see above). |
Click Here |
| Issues in External Administration.
Discussion paper issued by the Australian Government's
Corporations and Markets Advisory Committee (CAMAC) in February 2008. |
Click Here |
| ASIC Statistics on External Administration.
An official report compiled from information supplied to
ASIC by liquidators in their investigation reports. The report is
titled "External administrators: Schedule B statistics 1 July 2004 to 30
June 2007. It was published on 26 June 2008. |
Click Here |
|
"Collection Realities
For Unsecured Creditors" by Paul Morrow, Business Manager Debt
Collection, Australian Taxation Office.
[Alternative titles: “The Abolition Of Crown Priority”, or “The Impact
On The ATO Of The Voluntary Administration Procedure”] [Note:
this transcription was done by Peter Keenan in November 2008. I have had
this seminar paper since 1993. I have published the paper because it
contains important historical information about the controversial
abolition of the Crown/Government priority for taxation debts.] |
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| "How to Set Your Retainers and
Fees" by Art Italo, 1996.
|
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