ASIC Corporate Insolvency Update - Issue 20

Issue 20, June 2021

Changing our team name to Registered Liquidators

From 1 July 2021, ASIC’s Insolvency Practitioners team will change its name to the Registered Liquidators team.

The purpose of changing the name is to align more closely with the team’s focus, and to create greater clarity about the team’s role which is to regulate and engage with registered liquidators (RLs) about matters affecting their profession.

Some considerations that led to changing the name include the:

• wide and often misinterpreted use of the term ’insolvency practitioners’
• recent law reform creating a new ‘class’ of RLs (the ‘restructuring practitioner’) which may result in further confusion and misuse of terminology.

Back to top

Assetless Administration Fund

We address some of your frequently asked questions about the Assetless Administration Fund (AAF).

Can another partner of my firm, who is also a registered liquidator (RL), apply for AAF funding on my behalf?

No, the only person(s) eligible to apply are the RL(s) appointed to a liquidation. Funding requests lodged by any of their partners in the firm, who may also be RLs, are not eligible. Their application would result in a declined funding request.

Who determines the terms of the project schedule once funding has been approved in principle?

For practical reasons, after a thorough assessment process and an in-principle approval, we engage with the applicant. We then draft the project schedule with a view to maximise the effectiveness and value with money of funded matters. However, it is ultimately up to the applicant to determine and finalise the scope of work to be undertaken. All matters are considered on a case-by-case basis and applicants are invited to actively engage with us to ensure they agree with the terms of the work to be undertaken.

Where monthly updates are being provided to ASIC regarding funded applications, what should be included?

If required under the funding agreement, the purpose of the monthly update is to consider the progress made and disclose any potential delays, as well as additional funding which may be required. Unless specifically requested, a detailed update on the matter is not required. As the work being completed can be extensive and span several months, it is valuable to put in place a regular self-review process and refer to progress against the terms of the project schedule and agreed budget.

Back to top

CPE requirements for registered liquidators

From 1 January 2021, registered liquidators (RLs) must undertake at least 120 hours of continuing professional education (CPE) during the three-year period commencing on the date that person was first registered as a liquidator, and each subsequent three-year period the person is registered as a liquidator. Of the 120 hours, 30 hours must be capable of objective verification by a competent source.

For the reasons below, for many RLs who were registered immediately before the 2017 insolvency reforms commenced on 1 March 2017, the three-year renewal period of their registration as an RL will not be the same as the three-year period for the purpose of compliance with the CPE requirement:

• Following the 2017 insolvency reforms, a person who was registered as an RL immediately before the reforms commenced, was taken to be registered under Part 2 of the Insolvency Practice Schedule. If that person wished to remain registered, they needed to renew their registration as an RL on the first anniversary of their original registration date that occurred after the reforms commenced on 1 March 2017, and then every three years thereafter if they wish to remain registered.
• For CPE purposes, the reference to ‘first registered as a liquidator’ (in section 20-5 of the Insolvency Practice Rules (Corporations)) is likely to be interpreted by the court as a reference to the date the person was first registered as an RL under legislation in place before 1 March 2017.

As a result, for a person registered as a liquidator before 1 March 2017, at the time they first renewed their registration following commencement of the 2017 insolvency reforms, they may have been in either their first, second or third year for CPE purposes. Unless they were in their third year for CPE purposes, their three-year CPE period and three-year renewal period will not be the same.

Form 908 Annual liquidator return

In January 2021, we updated Form 908 Annual liquidator return. The form requires RLs to provide details of CPE undertaken during the current registration period (on a cumulative basis). We are currently updating Form 908 to provide further guidance on CPE disclosure and enhancing the questions asked. We will advise you when the form is available.

When completing the CPE section of Form 908 online, you will receive a warning message reminding you of the requirement to complete 120 hours of CPE during each three-year period of registration (CPE period). This is a warning only and does not prevent you completing the remainder of the form. Once the warning appears and you have completed all the relevant questions, select ‘Next’ to continue with completing the form.

As part of its ongoing compliance activities, we may consider information about CPE disclosed in Form 908 to monitor progress against the CPE requirement. However, we will seek further information from an RL before we consider any action for non-compliance with the CPE condition.

RLs need to maintain adequate records to enable them to monitor compliance with the new CPE requirement (on an annual and for each three-year CPE period) for each 12 months starting on the anniversary date of their initial registration.

Back to top

Accurately capturing industry codes data

On 6 May 2021, we updated Form 505 Notification of appointment or cessation of an external administrator to capture additional data about industries impacted by corporate insolvency to provide better information to government and others on the impact of corporate insolvency on different industries. When completing your form through the liquidator portal, you are now:

• first presented with a selection of 19 options for ‘Industry at the Division’ level
• asked to select from a second drop down at industry group level (options based on the initial Division level selection).

When submitting the form, we request that you review the industry selection made by you or your staff to ensure it is appropriate.

To assist you, we have provided a guide on the Form 505 webpage. Alternatively, if you are having problems finding the most appropriate selection, you may wish to consider using the ABS ANZSIC ‘keyword’ search function.

We are currently monitoring industry selection by registered liquidators and have noticed that during the first month, group level selection ‘953 other personal services’ was selected where it appears from the company name that the option is not appropriate. We ask that registered liquidators and their staff make a selection based on the information at hand (for example ask the director or petitioning creditor, Google search information, Facebook pages) rather than defaulting where the industry selection may not seem obvious or not be certain in the first instance.

Back to top

Lodgements for restructuring practitioner transition

There has been some uncertainty about the forms to lodge when transitioning from acting as a restructuring practitioner for a company (SBRP) to a restructuring practitioner of a restructuring plan (Plan Practitioner).

To reduce the forms required, you only need to lodge Form 505 Notification of appointment or cessation of an external administrator to record your appointment as the Plan Practitioner. Form 505 will automatically cease your previous role as SBRP and record your new role as the Plan Practitioner on the same day.

Alternatively, you can still lodge Form 505 to cease your role as the SBRP and then lodge Form 505 to record your appointment as the Plan Practitioner.

Once you have lodged Form 505 to commence your role as the Plan Practitioner, you will be able to lodge Form 5612 Notice of making of restructuring plan. The ASIC database must record your Plan Practitioner appointment before you will be able to lodge Form 5612.

Back to top

Company status in restructuring plan

We have been asked why the status of companies subject to restructuring is shown as ‘EXAD’ (external administration) and a company that makes a restructuring plan is shown as ‘REGD’ (registered). It is because regulation 9.1.02(a) of the Corporations Regulations 2001 requires the company register to disclose that a company is under restructuring but not when the company has made a restructuring plan.

Accordingly, when a company enters restructuring by appointing a restructuring practitioner for the company under section 453B of the Corporations Act 2001, the company’s status changes from REGD to EXAD. During restructuring, the company must also set out in every public document the expression ‘(restructuring practitioner appointed)’, section 457B.

On making a restructuring plan (or if the restructuring otherwise ends), the company’s status reverts from EXAD back to REGD (unless there is another current external administration or controller appointment), and there is no requirement for the company to include any reference to being subject to a restructuring plan as the legislation is silent.

Forms lodged by a restructuring practitioner of a restructuring plan are listed on an ASIC Company Search, as is the role as restructuring practitioner of a restructuring plan.

Back to top

Cyber security survey

We recently conducted a survey of registered liquidators (RLs) to identify existing risk management practices for cyber risks and highlight the importance of cyber awareness.

The survey was completed by 282 RLs, which is a response rate of just over 43%. Another 30 RLs started the survey but didn’t complete it.

We will have further insights to share once the results have been analysed.

Back to top

Media releases

Below are our most recent media releases related to corporate insolvency:

21-073MR Sunshine Coast director disqualified from managing corporations for five years

21-081MR Former Victorian director charged with breaching directors’ duties

21-099MR Victorian director disqualified from managing corporation

21-101MR ASIC disqualifies director from managing companies for engaging in illegal phoenix activity

21-123MR ASIC disqualifies director from managing companies for trading while insolvent

21-127MR Former director convicted of fraud and sentenced to four years imprisonment

21-132MR Director charged with breaches of directors’ duties

21-133MR Victorian director disqualified from managing corporations

21-139MR ASIC disqualifies director from managing companies for three years

21-140MR Former Gold Coast director jailed for fraud

Back to top

Insolvency statistics

In April 2020, we commenced publishing weekly statistics about companies entering external administration or controllership for the first time (Series 1B.1 to 1B.6).

In March 2021, we commenced publishing weekly statistics about all insolvency appointments (Series 2B Notification of all external administration and controller appointments).

We recently introduced a base line measure (based on a three-year average) to both these series now that it is more than 12 months since the initial impact of COVID-19.

The 12-month rolling average to 23 May 2021 is down 47.3% on the prior year, while the financial year to date (to 23 May 2021) is down 47.2% for the same period for the previous financial year (see our Series 1B.1 to 1B.6 for more detail).

Back to top

Contacts

Email support and contact details for ASIC team members for each state are available on the Contacts page.

Back to top