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Creditors gain more say in insolvency

18 December 2007 5:37PM
Financiers and other creditors will have greater rights to assert their interests in company administrations when an overhaul of the insolvency law takes effect on December 31.Creditors will get more notice of meetings, they will have more time to take action to replace an administrator, and they will have more time to enforce charges.A partner at chartered accountant PPB, Mark Robinson, said the aim of the law had always been to allow companies to use voluntary administration to act quickly, without the involvement of the courts, to resolve a business crisis. But the Government felt the need to shift the balance to improve outcomes for creditors.Robinson said: "Nine out of 10 times the creditors will be comfortable with arrangements made by the company and the administrator. "But that means there are 10 per cent of cases where creditors sense they have been ambushed. These amendments are aimed at dealing with those cases."Among the changes introduced in the Corporations Amendment (Insolvency) Act 2007, the time for holding the first creditors meeting has been extended from five to eight business days after the commencement of the administration.The administrator's notice of the first creditors meeting has been extended from two to five business days prior to the meeting.Robinson said: "That may not sound like much of a change but one of the important powers of creditors in voluntary administrations is that they can resolve to replace the administrator appointed by the directors of the company with one of their choosing."Those extra days will be critical in allowing creditors to talk to each other and determine whether they are comfortable with what the company has done."In another change that will be welcomed by creditors, the time allowed for a financier to decide whether to enforce a charge (in a situation where the financier is a majority charge holder) has been extended from 10 to 13 business days. The amendments give greater powers to the Australian Securities and Investments Commission and the Companies, Auditors and Liquidators Disciplinary Board to regulate insolvency practitioners and deal with misconduct.Liquidators will have to report to ASIC annually, rather than once every three years. ASIC will have the power to review an administrator's remuneration. Administrators will be required to declare any "relevant relationships" and declare any indemnities that have been provided.Robinson said: "If creditors come across shonky practices they can refer them and have them dealt with more effectively."The Insolvency Practitioners Association of Australia has been working with the regulators and has issued a code of professional practice for insolvency professionals. The code is effective from December 31 and is intended to support compliance with the new law.

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