Episode Transcript
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Introduction to Insolvency,understanding the basics.
Welcome to our first episode of IOInsolvency Options with Darren Vadi,
the managing Director of InsolvencyOptions, and a registered liquidator.
With over 30 years of experiencehelping businesses and individuals
navigate financial challenges.
In today's episode, Darren shareshis journey into insolvency.
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Explains what insolvency actually meansand reveals the warning signs every
business owner needs to recognize.
We'll explore when to seekhelp and the difference between
corporate and personal insolvency.
You'll understand thefundamentals of insolvency.
Know when to seek professional advice.
Learn why acting earlygives you the most options.
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I'm your co-host, Anthony Pearl.
Let's dive into unlockingmore about insolvency options.
Darren, let's focus a littlebit on corporate insolvency.
I think it's important.
That we start off with just simpleterminology because I think a lot
of people hear these words andmaybe don't fully understand it.
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They think they know what it means, butthey don't really know what it means.
So just unpack the ideaof liquidation first.
What does that actually mean?
So liquidation is where a companyis essentially a wound up, A
liquidator is appointed either.
Voluntarily by its directors andshareholders, or by the court.
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Now, the purpose of a liquidator isto secure, protect, and realize a
company's assets, then in accordancewith the priority set out in the
Corporations Act, distribute whateversurplus realizations are available
back to the company's creditors.
So on a liquidation, a businesswill, if it hasn't already prior to a
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liquidator appointment, a business willcease to trade upon the appointment
or shortly thereafter the appointment.
It is possible for a liquidatorto continue to trade the business
for a short period of time for thepurposes of realizing the most out
of a company's assets, but generallythat trading on period will generally
(02:15):
only go for weeks, not months.
Despite the fact that we seem tosee some of these retail outlets
that have liquidation sales thatseem to last for years, right?
That's a little bit of marketingthat goes on there I think.
I think it's fair to say that theliquidation sales that you refer to relate
to liquidation of stock as in sale orrealization of stock sales as opposed
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to liquidation of company, correct.
I do recall, and I hope this is a truestory 'cause I want it to be, there was
someone that tried to register, at leastoperate under the name closing down sale.
And I think that got pulled, I thinkit was the, so the story goes that they
weren't allowed to continue to do that,but that was the name of the shop and
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that was where it was going on for afew years until people kind of went,
hang on, this is not really right.
You're not really closing down, are you?
One would suggest there mayhave been a little bit of
misleading advertising there.
It's uh, just a, just a tad.
Just a tad, but I think in allseriousness, I mean, what does, what are
the implications of someone going into,or a corporate going into liquidation?
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'cause that's what we'refocused on at the moment.
Does it mean that for that personthat's, you know, whose business it is,
is that's the end of the line for them?
No, it doesn't.
It's the end of the line for thatentity and it can be the end of
the line for that business, but.
It is possible for the business to besold by the liquidator to another party.
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That is one of the outcomes which canachieve a greater return than simply a
breakup of the assets and a realization,say, via an auction basis on the assets.
So quite often a sale of businesswill provide for a better return
in a liquidation scenario whilstit's arable that goodwill.
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There may not be that muchgoodwill attached to the business.
Simply having the business in situ andoperating can provide a better return than
ceasing the trade, sending all the assetsout to auction for realization basis.
As for a director, a directorcan be a director of another
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entity post liquidation.
The only way a director is prohibited frombeing a director is if they themselves
become personally bankrupt or if as ASICdeemed that they, they are not a fit and
proper person to be a director and banthem from being a director of a company.
So how common is it for someone fora corporate structure to go into
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liquidation, then find themselves boughtout by the people who were really running
it before, just set up under a new entity?
Look, it can be common.
Absolutely.
You know, the directors of companieswho, where the company has been
placed into liquid liquidation,they still have to earn a living.
And it might be that the businessin which they have operated is an
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industry, which is what they're eitherlicensed to do or they have education
in, and that that is their vocation.
So at the end of the day.
Those directors still need towork and put food on the table
is obviously frowned upon.
If these directors are being seen tobe doing this on a regular occurrence.
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That certainly would be frowned upon andthat would certainly be looked at by the
statutory bodies, however, you know where.
A business owner has traded a businessand for one reason or another has incurred
an event which has had a fi adversefinancial impact on the uh, company.
It may be that they place the companyinto liquidation, set up a new
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company, and then look to buy thebusiness back, or buy the assets to
enable them to operate a business.
And in those circumstances, again,that could provide a greater return.
Into the liquidation from therealization of the assets, then simply
breaking the assets up and sending'em to auction, because at the end
of the day, it's all about maximizingthe value of the company's assets
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to then repay those two creditors.
And I imagine in a lot of cases therearen't a lot of assets in the business.
I mean, if people are rentinga space that's not an asset.
If it's largely service driven or ifit's even, it is driven by product that
is, you know, coming and sitting on ashelf and then going out straight away.
There's not a lot of, there canbe a lot of businesses that don't
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have a lot of assets in them,particularly in the service industry.
Yes.
And particularly with small, a lot ofsmall businesses, we are finding that
even with the change in the manner inwhich people do business these days, you
know, there is less need to warehousestock with the advent of drop shipping
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and third party logistics where it's moreof a just in time type of sale than it
is, you know, gone are the days wherethere were warehouses full of stock.
Ready for the sales to come through.
You know, now a lot of people drop shipwhere the stock is held, manufactured,
and held by the manufacturer, and thendelivered direct to the customer, which
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makes sense because again, that one wayof reducing the cost of a business is
to reduce the stockholding and reducethe warehousing costs of savings.
As businesses have grown, they'vefound more inventive ways of
actually doing business to keepthose costs down, to increase margin,
which has been been a positive.
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And just while we're on the subject ofliquidation as well, I mean, I guess the
question is, is do people see liquidationas particularly in compared to something
like, you know, bankruptcy and thelike, is liquidation a valid tactic?
To put a business in a bettersituation and it's a reset.
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I mean, things like, you know, they're ina lease that just isn't right for them,
and is it the best way to get out of that?
Or other arrangements and thingsthat sometimes it's a good
business tactic to reconfigure?
Not really, becauseliquidation is the end.
Generally.
There is, once a company goes intoliquidation, there is actually no
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coming back out of liquidation it.
May be that a cause of liquidationcould be a lease contract with which
the entity is no longer able to afford.
Therefore, its only alternative is thatthe use of voluntary administration
and deed of company arrangement andthe use of a small business restructure
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could in fact be a strategy toattempt to deal with some of those
onerous contracts such as a lease.
Those particular avenues or alternativesto liquidation are probably best suited
in dealing with things such as that.
Mm-hmm.
Certainly stuff that you hear allthe time, and there's a number,
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particularly in the retail sector, Iwould imagine, where people are, you
know, they're on a high, that there'san opportunity to get into a shopping
center and they think by being in theshopping center is going to increase
traffic, increase sales, et cetera.
And then they're whatever periodof time down the track when they
might realize that has not achievedthe same levels that have hoped
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and knee starting to go backwards.
One of the major issues with thosetypes of leases is the personal
guarantee component that goes with them.
The majority of those, for want of abetter term, shopping center leases,
unless negotiated out, will have astandard personal guarantee clause.
So what you quite often find is thatwhilst the business was unable to be
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profitable and ends up getting wound up.
With a significant debt owingto, in respect to its suppliers
and creditors and maybe some tax.
Quite often we find that the landlordis generally paid up to date because
the business owners want to ensurethat they can open the doors on
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a daily, weekly, monthly basis.
Mm-hmm.
But when the company is placing theliquidation mid lease, it doesn't
end there because the leasing owner.
He's able to make a claim for the balancegenerally for the balance of the lease for
which not only the company is personallyliable for the balance, despite being up
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to date with it's rent and not in arrears.
A claim he is made against is oftenmade against the company and then also
made against the director's personallypursuant to the personal guarantees.
And quite often we found inthose types of scenarios that.
The company will go into liquidation,and then depending on the financial
circumstance of the business ownerpersonally, the business owner may then
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have to look at a personal insolvencyalternative, if not bankruptcy,
as a result of that ancillarydebt owing pursuant to the lease.
I imagine that's not an easy thingto negotiate out of a lease for
people listing in and contemplatingsigning a lease at the moment.
You know, those kinds of personalguarantees might be the difference
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between someone agreeing to leasea space to you and not correct.
Now, there is an obligation onthe landlords and the light to
mitigate their any loss, but ifafter a company is wound up and the
space is vacated, if the landlord.
He's unable to relet the space forwhatever reason, for a significant
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period of time to the end of the lease,well then that liability still stays
with the business owner personally.
A lot of for people to considerin this kind of situation.
And I think it's important that we goback to also talking about the different
kites of liquidation because we've got.
As you mentioned earlier on, there'sthe, there's a situation where you've
got the court winding it up versuscreditors and, and the voluntary style.
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So obviously I imagined that you don'twant to end up in a situation where
you've got the court winding you up.
Is it better to jump before you're pushed?
It depends on thecircumstances, absolutely.
But what we often find is that if itgets to a court winding up, really the
business owners had exhausted all avenues.
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They're really left with nothingin the business to enable them
to deal with the issue at hand.
And that issue is being a creditorwho is pursuing for a debt owing
and rightfully petitioning the courtto have a liquidator appointed.
And whose decision is itabout which liquidator to use?
The petitioning creditor is theperson who obtains a consent from
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a liquidator should be appointed.
So the decision as to.
The liquidator who will be used is thatof the creditor pursuing the debt out.
And I guess that's a, that in itselfis a difficult thing to see, you know?
Is it, how do you find thatpeople make that decision?
Is it based on just someone they know?
You know, what is the criteria for peoplechoosing someone to fall into that spay?
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Sure.
Well, for someone to be aliquidator, they need to be a
registered liquidator with acid.
And what you often find is that the.
Winding up process is a legal processand the firm of lawyers that is attending
to the winding up process on behalf ofthe creditor generally has relationships
with one or a number of insolvencyprofessionals who they will refer the
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matter to and obtain a consent from.
There's a lot for people tounpack and work that out.
I think, you know, it's, it seems simple,but it's not a straightforward decision
to make because I imagine different.
People in that space have differentapproaches as well, and a lot,
I imagine as well has to do withthe people arrangements and how
you get on with people because itis such an emotional environment.
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Yes, it is.
As we've, everything irrespective of thetype of appointment being a, a voluntary
appointment or a court appointment, youknow, as insolvency practitioners, we
need to approach these matters with acertain amount of empathy, but at the
same time, we're also there to do a job.
We are there to.
Investigate the company's affairs,determine why it has failed, make
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sure that there's been nothinguntoward that has occurred,
and report back to creditors.
So irrespective of whether theappointment is via the court
or done voluntary, you know.
Really as a liquidator, we actfor the creditors and we are there
to provide them with a report asto why they're not getting paid.
(15:03):
Well, that's it for this episode ofthe IO Insolvency Options Podcast.
I hope you've got plenty of valuableknowledge and practical steps for whatever
your situation is from Darren today.
And if you need guidance oninsolvency matters, contact Darren
Vadi directly@insolvencyoptions.com
au or call 1804 6 3 3 2 8 or of courseyou could connect with Darren on
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LinkedIn details in the show notes below.
With over 30 years of experience,Darren and his team provide
personalized solutions.
For both personal and corporateinsolvency challenges.
This episode was produced by myteam at podcast done for you.com
au helping professionalsshare their expertise through
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(15:46):
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