The COVID-19 pandemic has caused worldwide economic instability and an increasing number of companies have been forced into voluntary administration.
Your company may lose a portion of its customer base, forcing the need for voluntary administration which could lead to company liquidation. Should this occur it is important to speak to one of the professional insolvency experts at Insolvency Guardian for more information about your situation and your options.
As we continue to self-isolate and social distancing regulations remain in effect, It is important to know that the Australian Government has introduced temporary changes to legislation to assist companies and debtors that face growing financial pressure amidst the economic instability caused by COVID-19.
Temporary protection from Insolvent Trading
On 24 March 2020 the Corporations Act 2001 (Cth) provisions were temporarily amended to protect company directors from personal liability from insolvent trading.
The amendment provides a new safe harbour from the directors’ duty to prevent insolvent trading, and was introduced in response to the growing number of businesses facing insolvency as a direct result of the economic effects of COVID-19.
Under the amendments, companies that may be at risk of insolvency in the wake of COVID-19 can continue to operate and incur debts ‘in the ordinary course of the company’s business’, without the fear of being punished for insolvent trading.
The safe harbour will be effective for six months.
To be able to rely on these measures, the debt incurred must be:
- In the ordinary course of the company’s business.
- During the six-month period commencing from 25 March 2020.
- Before any appointment of an administrator or liquidator during the temporary safe harbour application period.
During the six month period in which the temporary relief is offered, businesses have a better chance to resume normal operations when the pandemic has passed.
- Act in the best interests of the company as a whole;
- Act with care, diligence and good faith; and
- Do not use their position or information obtained as a director to gain an advantage or cause detriment to the company.
Going digital to keep you safe
Under the new Determination:
- Meetings (like AGMs) may be held using one or more technologies that give everyone entitled to attend a reasonable opportunity to participate without being physically present in the same place.
- A company may execute an electronic document without using a common seal, as long as signatories clearly identify themselves and their intention in respect of the contents of the document in electronic communication. Signatories can alternatively sign a physical copy of the document.
The requirement for social distancing because of the COVID-19 pandemic has obviously made it tough for organisation directors, creditors and liquidators to meet, or for several signatories to sign the same physical file without delay. This new determination will carry new validity to virtual practices, giving companies a level of reassurance that their officers’ roles and obligations in isolation have the equal legitimacy as conventional ‘ink and pen’ business practices.
Essentially, if your insolvent company is placed into voluntary administration which has resulted in company liquidation, you can rest assured that all steps of the liquidation process are valid and official, no matter where they are conducted.
If your company goes into liquidation and your movements are restricted by social distancing regulations, under the Determination you can execute an electronic document and without a common seal, as long as:
- Each person required to sign the document on behalf of the company signs a physical copy or counterpart of the document, or
- Signatories use electronic communication which suitably identifies them and indicates their intention regarding the document’s contents.
You can sign documents by:
- Pasting a copy of a signature into a document
- Signing a PDF on a tablet, smartphone or laptop
- Using cloud-based signature platforms
Copies, counterparts or electronic communication must include the entire contents of the document, but signatories do not need to sign the same physical document. Instead, a document could be signed and scanned by the first signatory and then printed and signed by the second signatory, or separate electronic signatures could be applied to fully electronic versions of the document.
The Determination also ensures that companies that are required to or wish to hold a meeting, such as a creditors meeting, may do so using technology rather than face-to-face meetings. The Determination enables a quorum, votes, notices and the asking of questions to be facilitated electronically.
The Determination also allows for information required for the meeting to be circulated and accessed electronically.
The new Determination is a temporary measure which will be in effect for six months and will expire on November 5, 2020.
New creditor thresholds and deadlines
As of 25 March 2020, debtors will be given more time to respond to creditors, with higher thresholds before any statutory demands can be made on a company.
So what do these changes mean?
A common first step into enter liquidation if for creditors to issue statutory demand on a debtor’s company. The minimum threshold for creditors to issue the demand was $2,000 under the Corporation Act 2001, and a debtor whose company was issued a demand had 21 days to respond.
As a result of the economic effect of the COVID-19 pandemic, the new minimum threshold for creditors issuing a statutory demand on a company is now $20,000.
Debtors will also have an increased deadline of six months to respond.
Not responding to a demand within the specified time creates a presumption that the company is insolvent.
Responsibilities of company directors
If you are a director of an insolvent company, you are personally liable for ongoing trading and therefore responsible for increased debts incurred during periods of insolvency.
However, the Government’s temporary changes to legislation relieves any liability to directors for incurring debts during the ordinary operations of their business. This means that directors are absolved from personal liability that would otherwise be associated with the insolvent trading, providing an opportunity for their company resume normal operations when the COVID-19 crisis has passed.
The relief of personal liability should not be seen as a ‘get out of jail free’ card. The relief only applies to debts incurred in the ordinary course of the company’s business, and all debts incurred must still be paid. Any cases of dishonesty and fraud during this period are still against the law and will be subject to criminal penalties.
All changes, including liability relief and the increased threshold and deadlines are temporarily in effect for six months from their introduction, meaning they are in effect up to 24 September 2020.
What does this all mean for me?
Whether or not your financial situation was directly affected by the COVID-19 pandemic, the temporary changes will alleviate the immediate pressure of making a decision during a time of financial hardship.
A key purpose for these changes is to allow companies to continue to operate throughout the short term during the pandemic. For example, if your revenue stream is drastically reduced as a result of clients in isolation, then the extended deadlines may provide the necessary breathing space for your clients to return and business to resume.
However, the change in laws is not an invitation for debtors to rest on their laurels. The effects of COVID-19 leave no guarantee that some companies will survive.
If the current financial landscape has led your company to face the possibility of liquidation, then speak to one of the professional insolvency experts at Insolvency Guardian for more information about your situation and your options.