Since the start of 2020, the Australian economy has faced several setbacks. Due to the devastating bushfires and the Coronavirus (COVID-19) outbreak, many consumers are holding off on spending.
This has weighed heavily on businesses, causing them to experience financial difficulties. Whether a business is small or large, those that are unable to pay their debts in a timely manner may go into voluntary administration.
So, what is voluntary administration? And what happens when a business goes into voluntary administration?
What Is Voluntary Administration?
Voluntary administration can only happen as a result of insolvency.
The process of voluntary administration involves appointing an administrator – otherwise known as an insolvency practitioner – to conduct an investigation into restructuring the business.
An administrator can be decided by the company’s directors, the secured creditors or the court. According to the law, an administrator must be a registered liquidator with ASIC.
The purpose of voluntary administration is to provide both the company and creditors with a chance to figure out what’s happening within the business. It’s also an opportunity to have an independent expert assess the business as a whole and look into its affairs and finances.
The process of voluntary administration was introduced to give companies dealing with difficult financial situations a chance to restructure and survive. The aim is to give the company a brief period of time to restructure without facing any claims from creditors, landlords, suppliers and other claimants.
The most common suggestions made by a voluntary administrator are:
- Selling the business
- Winding up the business
Administrators may also suggest that a business take several other paths — whether that be liquidation, proposing a deed of company arrangement (DOCA) or returning to business as normal.
Some Other Concepts You Should Know
These are some other common terms you might hear mentioned during the voluntary administration process. We’ve defined them so you know exactly what they mean as you’re exploring your options.
When your business goes into receivership, it means that a secured creditor has appointed a receiver to enter your business and sell assets so that the creditors can be repaid.
Bankruptcy occurs when an individual applies for bankruptcy themselves, or is declared bankrupt by a court.
Winding up (or wound up) conveys the same meaning as liquidation. It means that the business is shutting down for good.
Who Is Involved In Voluntary Administration?
The voluntary administration process involves various parties with varying interests.
Here’s a breakdown of the parties that are generally involved.
|The party||What they’re interested in|
|The company itself||The company and its directors would generally want to salvage the business and repay their debts|
|The creditors||The creditors are primarily concerned with being repaid|
|The administrator/insolvency practitioner||The practitioner is focused on investigating the business and finding out the best possibles ways to move forward|
What Happens When A Business Goes Into Voluntary Administration?
When a company goes into voluntary administration, it doesn’t necessarily mean it is the end of its journey. Instead, it means that the voluntary administrator will take control of the company.
As for the directors, they will lose their power over the company. This is often a tough process for companies because it can be costly, lengthy and uncertain.
Throughout the voluntary administration process, the business and its directors will have a time-out period in which they are protected from the likelihood of insolvent trading. This time should be used by the business to plan for its future.
In short, this time-out period means that unsecured creditors cannot put any claims against the business (except if the court or the administrator permits). It also means that owners, landlords and secured creditors cannot recover their property or impose their expenses over the company’s property.
Here are the steps taken when a company goes into voluntary administration.
|1. Assigning a voluntary administrator||A voluntary administrator will be appointed by either the directors, secured creditor or a liquidator.|
|2. The first creditors’ meeting||Once the administrator has been chosen, it is the administrator’s duty to carry out the first meeting of creditors within eight business days (except if the court allows an extension of time). |
The administrator must provide creditors with a notice of the meeting at least five business days before.
The purpose of this first meeting is to discuss and vote on whether to change the administrator and/or to create a committee of inspection.
|3. Investigation and report||The administrator investigates the company’s affairs and informs creditors on further options.|
|4. The second creditors’ meeting: reaching a decision on the company’s future||The administrator must undertake a second meeting of creditors within 25 business days of being chosen (except if the court allows an extension of time). |
Similar to the first creditors’ meeting, the creditors must receive notice of the meeting at least five business days before.
The purpose of the second meeting is to make a decision about the company’s future. The creditors can:
• Return the company, governed by directors;
• Form a deed of company arrangement (DOCA); or
• Go into liquidation (this will be done immediately, and the administrators will become liquidators).
How Can I Prevent My Business From Entering Voluntary Administration?
Whether your company is small or big, it’s always important to keep track of how it’s doing as a whole.
If you’re experiencing financial difficulties, or if you’re worried your company may soon be faced with voluntary administration, here are some things you can do before you panic about the worst case scenario.
1. Understand Your Company, Market And Industry
It is always wise to keep track of your company’s management, particularly by understanding what’s happening in its planning, strategic, finance and marketing arms. This will give you a full picture of your future growth options.
On top of that, it is important to understand your market and industry. A company can be doing well financially but can be suddenly impacted by an unexpected event, such as the Australian bushfires or the Coronavirus outbreak. This is why it’s important to stay on top of industry trends and ensure you’re ready to adapt at a faster pace than your competitors.
2. Business Restructuring
As a company, it is good to plan ahead rather than ignoring any issues that may be on the horizon. If your company is facing uncertainty, you may want to look into restructuring your business. However, it is important to seek professional advice before implementing any new changes in your business.
Given that many businesses and individuals have been affected by the Coronavirus pandemic and other unexpected events, making sure your business complies with ASIC and other legal regulations is tricky — particularly when you’re facing so many other stressors at the same time.
So, when navigating the voluntary administration process, it’s best to get legal help to ensure you’re fully aware of your options and the various steps you’ll need to take.
If you need help with any of the above, we’re here to help. Our experienced lawyers can be reached on 1800 730 617 or at firstname.lastname@example.org.
Also, be sure to monitor our Coronavirus resource page where we’ll be sharing the latest news and developments as they come in.
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