LATEST INSIGHTS
Shadow and De Facto Directors: A Guide for Accountants and Other Professionals
As an insolvency practitioner, I occasionally see the impact that shadow and de facto directors can have on companies.
Winding up of a company if it is “just and equitable”
Section 461(k) of the Corporations Act 2001 (Cth) is a discretionary power of the court to order the winding
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Engage with us early if you see rough waters ahead
The ‘Safe Harbour’ provisions were enacted in September 2017 and provide directors with an exception from a personal insolvent trading liability where they are developing courses of action which are reasonably likely to lead to a better outcome for the company than the immediate appointment of an external administrator.
The new provisions are designed to foster a more entrepreneurial approach from directors in an effort to overcome the Corporations Act insolvent trading provisions.
In determining whether a course of action is reasonably likely to achieve a better outcome, the provisions make reference to:
- A director being properly informed of the company’s financial position
- A director taking appropriate steps to prevent any misconduct by officers or employees of the company that could adversely affect the company’s ability to pay all of its debts
- Maintenance of appropriate financial records appropriate to the size and nature of the company
- Receipt of advice from an appropriately qualified entity (for example, an insolvency practitioner) who was given sufficient information to give appropriate advice
- Development or implementation of a plan for restructuring the company to improve its financial position
Certain matters must be done in order to rely in the Safe Harbour provisions, including:
- Payment of all employee entitlements as and when they fall due
- Compliance with all lodgment obligations required by taxation laws
At HLB Mann Judd Insolvency WA, we are equipped to take on a Safe Harbour engagement for you or your client.
If you require further information regarding Safe Harbour, please make contact with us on 08 9215 7900
