Bankruptcy

<html><body>
GUEST OBSERVER
In Australia, there is a lingering belief that bankruptcy should not be “too easy”.
The federal government’s plan to reduce the period of bankruptcy from a minimum of three years to one year, announced in December’s Innovation Statement, has been criticised for allowing debtors to avoid the consequences of their misconduct.
But this view misunderstands the role of bankruptcy law in a modern economy and arguably conflates the role of bankruptcy and criminal law. In fact, what is needed in addition to legal changes is a shift in the way Australians think about bankruptcy.
Modern personal bankruptcy law attempts to balance competing public interests of rehabilitating debtors and allowing them a fresh start, with the need to discourage reckless borrowing and spending and abuse of the credit and insolvency system.
But bankruptcy as a crime has had a long history, arising out of an early need to allay the violence and mayhem occurring through Roman debtors not paying their creditors, by imposing some order and authority on the warring parties.
This authority sought to divide up the debtor’s assets among the creditors; but the idea of protection of the unfortunate debtor did not arise until later. The first modern bankruptcy laws developed in the 16th century in England and sought to provide administrative order to commercial debt recovery.
Non-business bankruptcy was treated as a crime, with debtor’s prisons existing until the late 19th century. The growth of middle classes after the industrial revolution and the drive to encourage and broaden entrepreneurial risk taking helped change society’s treatment of all bankrupts (both business and non-business) and the goal of protection and rehabilitation became more important.
At the same time, bankruptcy continues to involve the bankrupt losing most of their property, including the family home, and any cash, shares or other property, including their passport, and anything other than household furniture and a cheap car.
There are requirements to repay creditors through contributions from income, above a certain level; restrictions imposed on obtaining credit and with credit agencies reporting the bankruptcy; and restrictions on being a company director and on retaining licenses to work in certain trades and professions.
A failure of a bankrupt to comply with their obligations can result in the extension of their bankruptcy to five or even eight years. Failure to file a list of their assets and liabilities can result in the bankruptcy continuing indefinitely, at least until the bankrupt complies.
Most of these impacts are expected to remain whether bankruptcy is one year or longer.
Our 21st century laws even connect bankruptcy with serious crime, and treason, and impose criminal sanctions, including imprisonment, for breaches by bankrupts of many of these obligations. And there is still the stigma of bankruptcy, of being labelled as someone who could not manage their finances and left their creditors unpaid, and who otherwise might be seen as morally suspect.
The government doesn’t propose to lessen these rules. Those who suggest that bankruptcy is an easy option are ignoring the range of penalties and limitations that apply to bankrupts. Given the fact that bankruptcy can release a debtor from debts of $20,000, or $20 million, the law - and society - acknowledges that some accountability and consequence be imposed. It is a matter of degree and of balance.
But the government has opted for a fresh approach to unpaid debt in personal insolvency, given it is a more emotive area than the relative anonymity of corporate losses.
Australia is seen internationally as having a rather harsh view of unpaid debt. But punishment and deterrence can only achieve so much when it comes to discouraging reckless borrowing or profligate spending.
A person might well not pursue their innovative business idea if the consequence of it not working were jail, or at a less extreme outcome, a long period of bankruptcy and the loss of most if not all of their property. Creditors also need a predictable, transparent and fair system for collecting their debts.
For that reason, many other countries are refocusing their insolvency laws more on rehabilitation and a constructive approach to business rescue.
The government is trying to shift the balance in favour of risk and innovation, with its potential for promoting economic growth, and to move the language away from retribution and failure, an important aspect of cultural change. But merely reducing the period of bankruptcy won’t be enough.
The public narrative and perception around financial failure and insolvency, both personal and corporate, need to change if we are to embrace an entrepreneurial and innovative business culture.
Changing the law is perhaps the easier part, with initial public support needed, followed by a shift in public perception in order to allow the law to be fully effective.
 
Jason Harris is associate professor in corporate, commercial and insolvency law, University of Technology Sydney and can be contacted <a href="https://theconversation.com/profiles/jason-harris-147254" target="_blank">here</a>.
Michael Murray is visiting fellow, QUT, Queensland University of Technology and can be contacted <a href="https://theconversation.com/profiles/michael-murray-211427" target="_blank">here</a>.
Both are authors for The Conversation.
</body></html>

jchancellor-FAypfDUnLy

Reforming bankruptcy laws is the first step - next, remove the stigma

<html><body>
EXPERT OBSERVER
Personal insolvencies hit their lowest level since 1990 in the December 2019 quarter, and were again some -16.5 per cent lower year-on-year in the March 2020 quarter.
<img src="https://1.bp.blogspot.com/-sxieSq_ZTC4/Xun2fAevMFI/AAAAAAAA2ZI/Ml-BL6k_1nM57rxesOG0ZtKB6hj74PUMACNcBGAsYHQ/s640/A1.jpg" width="640" height="370" data-original-height="801" data-original-width="1379">
 
This is all the more remarkable when you consider the stats on a per capita rolling annual basis, where they appeared to be racing towards zero in the March quarter.
<img src="https://1.bp.blogspot.com/-bxLLz7PwC1Y/Xun3Bey1VFI/AAAAAAAA2ZU/r2Y9lNeAZCAVu2SZELwfoUeIhvH7Va3JQCNcBGAsYHQ/s640/A3.jpg" width="640" height="376" data-original-height="805" data-original-width="1366">
Part IV and XI bankruptices were also some 16 per cent lower year-on-year.
<img src="https://1.bp.blogspot.com/-2itXxsBidoQ/Xun2fN0rv6I/AAAAAAAA2ZE/wNgH8--8tKoMG-qaG4ABsusYNNmGT-yWwCNcBGAsYHQ/s640/A2.jpg" width="640" height="380" data-original-height="803" data-original-width="1348">
ASIC's insolvency figures all showed a sharp drop in insolvencies in April, presumably partly related to the government's stimulus measures.
Construction insolvencies also fell to a series low in the March 2020 quarter, thanks to low interest rates perhaps.
 <img src="https://1.bp.blogspot.com/-HqPTq923vAY/Xun4AUD8h8I/AAAAAAAA2Zg/up6jQvL6pAAklQRSWSF8KXd5QO1uUOAQQCNcBGAsYHQ/s640/ASIC.jpg" width="640" height="378" data-original-height="800" data-original-width="1353">
Let's see what September brings, and whether or not there is a financial 'cliff' (not if the government is smart about things).
</body></html>

pwargent-M4siyDbqQY

Personal insolvencies remain at their lowest levels in 30 years: Pete Wargent

<html><body>
A Canada Bay property associated with the family of the bankrupted property developer Salim Mehajer was pulled from weekend auction.
The family’s Canada Bay investment property came with plans for a mega mansion.
The site has a rundown 1970s home at <a href="http://www.timerealty.com.au/1P0567" target="_blank">555 Lyons Road West.</a>
<div class="story-content">
The auction sign had “withdrawn” slapped across the sign.
Canada Bay Council had rejected Mehajer’s plans for the huge Canada Bay home.
“We’ve had an offer, but it wouldn’t be accepted,” Century 21s Fay Petrou told The Sunday Telegraph.
</div>
</body></html>

j.ballantyne1990-6AQqhLzZaK

Mehajer family Canada Bay investment offering pulled from auction

<html><body>
Between 9 and 22 March, 887 people entered into a new personal insolvency in Australia, according to AFSA, the Australian governmental financial authority.
Where they could identify the industry, the most common industry was health care and social assistance. Over this period, 230 of these people were involved in a business.
Construction was the most common industry where people who entered into new personal insolvencies were involved in a business.
The number of people who entered into a new personal insolvency increased from 830 between 24 February and 8 March 2020 to 887 people between 9 and 22 March. The number involved in businesses also increased, from 206 to 230.
The average number of people entering into a new personal insolvency per fortnight between 1 July 2019 and 22 March 2020 is 844.
</body></html>

Insolvency and bankruptcy spike due to Covid-19: AFSA

<html><body>
GUEST OBSERVATION
The coronavirus pandemic has wreaked havoc on the Australian economy, and the financial effects for many are deeply personal.
Sadly, there’s no shortage of terrible advice online when it comes to personal finance. And as September 30 looms - the date by which JobKeeper, the increased JobSeeker and many negotiated rent and mortgage deferrals end - it’s important to be fully informed before you make potentially life-changing financial decisions.
As a former financial counsellor and former consumer credit educator for the Australian Securities and Investments Commission (ASIC), here’s what I think you need to know if you’re considering mortgage deferral, rent relief or bankruptcy.
Mortgage deferral
Residential mortgages are covered by <a href="https://asic.gov.au/regulatory-resources/find-a-document/regulatory-guides/rg-209-credit-licensing-responsible-lending-conduct/" target="_blank">federal legislation</a>, under which lenders can assist when borrowers can’t afford their usual repayments due to changed circumstances — such as losing hours or employment.
For example, you can ask your lender put on hold payments from June to September. It’s up to you and the creditor to establish clearly what happens to those payments. Are they pushed to the end of the contract, thereby extending the life of your loan? Or will you repay extra when you can afford repayments again?
Make sure you understand how much more it will cost you in additional interest if you extend the life of your loan by deferring these payments to the end of the contract. Depending on the details of your loan, you could be adding thousands of dollars to the amount you need to repay.
Most mortgage lenders don’t really want to repossess your house. It’s costly, time-consuming and stressful. But before asking for mortgage relief, you need to have a plan for the post-deferral period.
What happens if you still can’t make your usual repayments? Any licensed financial professional should be able to help negotiate a deferral on your mortgage or other consumer debts such as credit cards, but you should first consider seeing a free financial counsellor who is independent of any lenders. They can be contacted on 1800 007 007 or through the <a href="https://ndh.org.au/" target="_blank">National Debt Helpline</a>.
Rent relief
If you can’t pay your rent due to changed circumstances, you can ask your landlord to reduce or defer your rent. They can, of course, say no.
Unlike mortgage deferral, the implementation and process is inconsistent across states and territories. It can be difficult to navigate.
There are <a href="https://www.sbs.com.au/news/regulator-to-crack-down-on-real-estate-agents-pressuring-tenants-to-use-super" target="_blank">reports</a> of some landlords asking for comprehensive financial statements to support claims, or for their tenants to access the early release of up to <a href="https://www.ato.gov.au/individuals/super/withdrawing-and-using-your-super/Early-access-to-your-super/#Compassionategrounds" target="_blank">A$10,000 in superannuation</a> to pay the rent.
Ausralia’s corporate watchdog, the Australian Securities and Investments Commission (ASIC), has <a href="https://download.asic.gov.au/media/5546344/asic-letter-response-to-early-release-of-super-state-rei-3-april-2020.pdf" target="_blank">warned real estate agents</a> that advising tenants to take money from their superannuation may constitute giving unlicensed financial advice and/or be against people’s best interests, attracting possible fines and jail time.
If you’re talking with your landlord about rent relief, be clear on whether you’re talking about rent payments being reduced, deferred or permanently waived, and whether these payments would need to be made up by a certain date. Renters can seek help from <a href="https://ndh.org.au/" target="_blank">free financial counsellors</a> or a <a href="https://www.tenants.org.au/covid19/guide" target="_blank">tenants’ union</a>.
State and territory governments have established various schemes to help renters work out agreements with their landlord (see this <a href="https://www.commerce.wa.gov.au/consumer-protection/covid-19-residential-tenancies-mandatory-conciliation-service" target="_blank">Western Australian</a> scheme as an example).
Bankruptcy
Bankruptcy should be a last resort. Many creditors have shown they’re willing to provide short-term delays (for about 90 days, for example) if people need more time to pay a debt.
Consumer credit contracts are written on the basis that life has its ups and downs and if a debtor genuinely can’t pay, the creditor can help by reducing payments, stopping interest charges, deferring payments and/or restructuring loans.
In almost all consumer bankruptcies, there is no return to creditors so they generally don’t want debtors to go bankrupt. It’s in their interest to help debtors through a difficult period so they can return to making payments.
Of great concern to consumer advocates is that searching “bankruptcy” or “help with debts” on the internet will often generate results for companies with a vested interest in placing you in what’s called a “debt agreement”. These should be approached with caution. It basically means you pay for a company to help you declare bankruptcy - but this is unnecessary.
A debt agreement is an act of bankruptcy that directs fees to those companies and quite often places consumers in unmanageable and unsustainable long-term repayment plans.
Instead, try to find free financial counsellors, some of whom work for charities. They are professional, unbiased and expert at informing people of their options when in debt. They can be found via the government’s <a href="https://moneysmart.gov.au/managing-debt/financial-counselling" target="_blank">MoneySmart</a> site.
If you can’t pay your debts, there are many <a href="https://www.afsa.gov.au/debtrelief" target="_blank">options available</a>. The key is contacting the right person or organisation - and knowing whatever comes up first in a Google search is not necessarily the best or most impartial place to get help in a financial crisis.<img src="https://counter.theconversation.com/content/141274/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
<a href="https://theconversation.com/profiles/gregory-mowle-296811" target="_blank">Gregory Mowle</a>, Lecturer in Finance, <a href="https://theconversation.com/institutions/university-of-canberra-865" target="_blank">University of Canberra</a>
This article is republished from <a href="https://theconversation.com" target="_blank">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/mortgage-deferral-rent-relief-and-bankruptcy-what-you-need-to-know-if-you-have-coronavirus-money-problems-141274" target="_blank">original article</a>.
</body></html>

What do you need to know if you have coronavirus money problems?

<html><body>
Sports scientist Stephen Dank could be bankrupted after the Bendigo Bank launched ­action over an unpaid debt of ­around $100,000 related to a failed forestry scheme.
Mr Dank, who was in November banned for life from being ­involved in sport over his involvement in the Essendon doping saga, owes the Bendigo $98,500 after borrowing money to invest in a forestry scheme run by timber company Great Southern in 2006.
Great Southern collapsed in 2009. Great Southern Group was the country's largest agribusiness managed investment scheme (MIS) business.
The bank has been pursuing Mr Dank for the money since February last year, serving him with paperwork at the Sydney Opera House in March.
The Australian reported Bendigo Bank won a trigger to bankrupt Mr Dank from the Victorian County Court in October at another hearing he did not attend.
The Federal Circuit Court will hear the bank’s application to bankrupt Mr Dank on August 15.
The collapse of the Great Southern Group led to three Australian parliamentary committee inquiries into the MIS industry.
The Great Southern Group began in 1987 managing South-east Australian plantations of Pinus radiata, but in 1992 shifted to Eucalytus plantations for wood chip productio.
By 2001, the Group had 66 000 hectares of forestry plantations.
The Group diversified into viticulture, then expanded into organic olives, and acquired some beef cattle MIS businesses, including the 660,000-hectare Moola Bulla property in WA's East Kimberley region.
</body></html>

Stephen Dank facing bankruptcy over forestry investment

<html><body>
A 48-year-old engineer from Mount Martha, Antony Fensome, has been sentenced to a community correction order after pleading guilty to disposing of property after bankruptcy, altering records, and leaving Australia without written permission from his trustee.
Magistrate Lethbridge recently sentenced Mr Fensome at Dromana Magistrates’ Court to a 15 month Community Correction Order (CCO) and 150 hours of community service.
Antony Sean Fensome had filed for voluntary bankruptcy on 11 September 2012 with debts in excess of $83,000.
At the time, Mr Fensome jointly owned a property in the United Kingdom which he sold during his bankruptcy period for £225,000.
Following the sale, Mr Fensome provided false information to his trustee about the amount he received, including a false bank account statement and settlement statement, showing he received only £195,000 from the sale. He has since commenced making repayments to the trustee in respect of the $37,708.48 debt owing from the unauthorised sale of the UK property.
During a voluntary interview with the Australian Financial Security Authority Investigators, Mr Fensome made admissions that he had provided false information about the amount of surplus proceeds from the sale and that he had produced the false documents to reduce the amount he would have to pay to his trustee.
Mr Fensome also travelled overseas on six occasions during his bankruptcy, without written permission from his trustee.
In sentencing, His Honour noted that the offences were extremely serious and, if not for the accused’s early guilty plea, personal circumstances and repayment schedule, he would have faced a period of imprisonment.
The matter was prosecuted by the Commonwealth Director of Public Prosecutions on behalf of the Australian Financial Security Authority.
 
</body></html>

Bankrupt caught selling UK property without telling Australian trustee

<html><body>
Danielle Andrews and her husband Dean Andrews have been sentenced at the Downing Centre Local Court for their disposal of property with intent to defraud creditors during bankruptcy.
In October and November 2014 both Mr and Mrs Andrews were made bankrupt, pursuant to sequestration orders made at the Federal Magistrates Court, after failing to comply with bankruptcy notices brought against them by Andrews Advertising Pty Ltd.
While bankrupt, they sold their $2.2 million Oatley home.
The sale proceeds of $498,113.10 were deposited in their joint account, Danielle Louise Andrews and Dean James Andrews
Mrs Andrews then transferred $348,500 to her accountant and withdrew $8,000 in cash. Mr Andrews withdrew $21,000 in cash.
On 25 July 2017, Mr and Mrs Andrews attended the Downing Centre Local Court in Sydney, both entering a plea of guilty for their charges. 
Mrs Andrews was sentenced to 12 months imprisonment to be served by way of Intensive Corrections Order.
In sentencing last month, Magistrate Hamilton noted that Mrs Andrews’ offence was mid‑range in seriousness and had some aspect of sophistication.
Magistrate Hamilton found she tried to maintain her standard of living despite bankruptcy which her Honour described as an “unrealistic expectation”. 
Magistrate Hamilton gave weight to the fact that Mrs Andrews was the primary and only available carer for her three children, each of whom requires special care.
Mr Andrews was sentenced to 80 hours community service for his part in the removal.
The matter was prosecuted by the office of the Commonwealth Director of Public Prosecutions on behalf of the Australia Financial Security Authority.
</body></html>

Bankrupts caught selling Oatley property 

<html><body>
Quentin Van der Hecht of Lismore has been sentenced after pleading guilty to an offence of disposing money with an intent to defraud his creditors.
Mr Van der Hecht filed for voluntary bankruptcy in July 2011.
In June 2011, Mr Van der Hecht received over $200,000 from the sale of his property.
Mr Van der Hecht directed his solicitor to pay the surplus funds from the sale to his estranged wife to keep the funds out of reach of his creditors. 
The Court recently found the offence proven and convicted Mr Van der Hecht.
He was sentenced to two years imprisonment that was suspended upon him entering into a $2000 good behaviour bond for two years.
The Magistrate noted the importance of the bankruptcy system and the need to prevent bankrupts from exploiting the system.
The matter was prosecuted by the Office of the Commonwealth Director of Public Prosecution on behalf of the Australian Financial Security Authority.
</body></html>

Bankruptcy

Editor's Picks

Have something to contribute?

Developments

New apartments

New townhouses

News

Bankruptcy

Editor's Picks

Receive the latest news stories to your inbox

Have something to contribute?

Developments

New apartments

New townhouses

News