ASX listed Surfstitch Ltd was placed into voluntary administration by its directors on 24 August 2017, less than four weeks before the safe harbour reforms came into effect on 18 September.
The Australian Financial Review has reported the administrators’ conclusion that the company was in fact solvent when the appointment was made. At first glance it seems surprising that administrators were appointed to a solvent company, but the threshold question is whether:
“in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time”
It is the directors’ opinion at the time that matters, not the conclusions drawn later with the benefit of hindsight – and solvency is not always clear even with the benefit of hindsight.
According to an ABC interview, however one of the directors was not satisfied that Surfstitch was insolvent, and abstained from the vote for administration. This highlights the practical problems that directors face, and underscores one of the advantages that safe harbour now offers: the opportunity to more carefully assess and understand the financial position of the company.
On 4 April creditors will choose between two rival deed of company arrangement proposals. One proposal will see the business sold in return for three-year convertible notes issued by the purchaser, the other will see a debt for equity restructure and later relisting. Trade creditors and employees will be paid in cash under both proposals.
Update: on 4 April the creditors accepted the three year convertible note proposal, putting their faith in a valuation uplift over that period.