When a company or business can't pay its bills when they are due it is said to be insolvent.
What are my responsibilities as a director?
A director is responsible for managing the company. ASIC provides easy to understand information on what it means to be a company director and responsibilities of a director.
When a company can't pay its bills as they become due, a director's responsibilities change and a director can be responsible for debts that the company incurs while the company is insolvent. This is called insolvent trading. You may also have liability if you breach your director duties and the company has experienced a loss. ASIC provides easy to understand information about director's liability when things go wrong.
It is important that you seek help from a qualified professional if you think that your company is in financial difficulty. If your company has a winding up application made against it by a creditor, you may be contacted out of the blue by someone offering you assistance. It is important that before using an advisor you check their qualifications. ASIC has released correspondence about the risks if you don't use the right type of advisor. You may receive a letter like this from ASIC.
Most ARITA members provide an initial meeting to discuss your circumstances, free of charge. You can check if a person is a member of ARITA. Members of ARITA are bound by our Code of Professional Practice .
Options for companies
If a company is facing financial difficulties and the directors or creditors believe that it is, or may become, insolvent, it may end up in one of the following types of formal administration:
- Liquidation, also known as winding up;
- Voluntary Administration or Deed of Company Arrangement;
The appointment of a formal administrator may be voluntary, when it is initiated by the company itself, or involuntary when it is made by a person or organisation that is owed money, or by the courts.
The options for a business that is insolvent include:
- Liquidation: a Liquidator is appointed to wind the company up, and its assets are sold to pay outstanding debts. The company is then deregistered and ceases to exist. The most common types of liquidations for insolvent companies are court liquidation and creditors’ voluntary liquidation.
- Voluntary Administration, possibly leading to a Deed of Company Arrangement: a voluntary administration is a formal standstill type administration where the voluntary administrator investigates and reports on the company’s history and financial position to creditors and makes a recommendation about its future. Creditors then decide whether to accept a Deed of Company Arrangement if one is proposed by the directors, liquidate the company or return the company to the control of the directors. A Deed of Company Arrangement is a procedure that permits a company to make a compromise or arrangement which is binding on all creditors. Subject to the terms of the arrangement, the company may then be saved and continue to operate.
- Receivership: a receiver or receiver and manager is usually appointed by a secured creditor, or in some cases by the court. The assets of the company are realised for the benefit of the secured creditors. This type of appointment can occur at the same time that a company is in liquidation or voluntary administration.
Regardless of the type of appointment, the person appointed must be a registered Insolvency Practitioner and ideally a Professional Member of ARITA.
I am also having trouble paying my bills
When a person can't pay their debts, there is a different process to follow and we provide information about that here
ARITA has worked with the Australian Financial Security Authority
(AFSA) and Australian Securities and Investments Commission (ASIC) to
produce guidance for people in business. This guide helps those experiencing financial distress understand
what it means for them personally and any company they own or operate. The guide can be downloaded from the link below.
The earlier you take action the better and you should talk to an insolvency professional before the situation in your business or organisation becomes critical.
To find out more about liquidations and other insolvency
administrations for companies, a document summarising the key features of the
different types of formal administrations can be downloaded from the
ARITA and ASIC provide a range of information sheets for further information.
ASIC provides information for directors when their company is insolvent.