‘Phoenixing’ – the process by which the assets of an insolvent company are transferred to another company so that creditors miss out – is a significant problem in Australia. On budget night the government announced several headline anti-phoenix measures, with greater detail provided last week through the release of draft legislation for consultation. Although the measures are aimed at those who act unscrupulously, they have a wider ambit, and there is the potential for them to have a broader impact if they do become law.
Overview of the measures
There is more detail here but in summary, the key concept is a ‘Creditor Defeating Disposition’ (‘CDD’). A CDD is a transaction entered into either:
- when the company was insolvent; or
- in the twelve months prior to the company entering formal insolvency administration;
which prevents, hinders or significantly delays the property of a company from becoming available for the benefit of creditors.
If there is a CDD:
- Officers whose conduct resulted in a CDD will commit an offence.
- Those involved in ‘procuring, inciting, inducing or encouraging’ a company to engage in a CDD will commit an offence
- Both ASIC and the Courts will have power to make orders to reverse the transaction to recover the property.
A CDD will not be voidable if the sale was for market value consideration, or was entered into by a liquidator, under a deed of company arrangement or scheme of arrangement, or as part of a Safe Harbour restructuring plan.
‘Market value’ sounds like an objective measure but in the absence of a public sale process it will be assessed retrospectively. By comparison, the duty of care imposed upon receivers requires them to conduct an effective sale process but it does not mandate an outcome.
Safe Harbour is a defence
Specific protection for transactions entered into by liquidators and deed administrators is obvious and as expected. A similar exemption for companies in Safe Harbour (more detail here) is a sensible and consistent policy alignment.
Application to transactions with third parties
Many would think of a phoenix transaction as a sale to a related party, but significantly it seems that the draft legislation has the potential to apply to sales to third parties, if the proceeds of sale are ‘diverted.’
The type of transaction described in an extract from hypothetical email from a CFO to a CEO highlights some of the real world issues:
We have a received an unsolicited offer for our New Zealand operations. The offer is less than I think we would get if we took the business to market but that would take another six months, and a sale now would leave us one less headache to manage, so I recommend that we accept….
If those sales proceeds are used to pay the trade creditors of the New Zealand business, and the Australian business collapses a month later with employees unpaid, should that transaction amount to a CDD which can be reversed? Is that email the ‘smoking gun’ which might expose directors and advisers to the transaction to the risk of prosecution?
Potential purchasers who believe a vendor to be under financial pressure may be concerned about whether they can take clear and irreversible title to business assets, or whether there may be a risk of later claw back. Such a purchaser has a theoretical access to the general good faith defence that is available to purchasers without ‘knowledge of insolvency’, but they may need to think carefully about when exactly a suspicion about financial stress might amount to ‘knowledge of insolvency.’ Some potential acquirers may decide they need more information, or details of how the funds will be dispersed, and some may decide that it is safer to walk away and wait for a formal insolvency to deliver clear title.
Measures to address the serious problem of phoenixing are appropriate, and alignment with Safe Harbour measures is commendable. However, phoenixing by its very definition involves transaction with related parties. Extending the ambit of anti-phoenix measures so that they also apply to transactions with third parties risks the ability of stressed companies to promptly execute genuine sales, and should be implemented with great care. If anti-phoenix measures need to be applied beyond those currently defined as ‘related parties,’ perhaps a better approach might be to broaden that definition.