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<h4>GUEST OBSERVER</h4>
As the Senate Economic References Committee (SERC) begins its public hearings into insolvency in the Australian construction industry, the vexed issue of phoenixing deserves to be highlighted.
It is generally believed that illegal phoenix activity - where a company is liquidated and rises again in a way that avoids paying creditors - is widespread in the Australian construction and building industry.
In fact, it is difficult to substantiate whether this is the case due to a paucity of reliable data. But anecdotal reports suggest such concerning behaviours as deliberately avoiding tax, the use of false statutory declarations and refusing to pay wages and entitlements, are commonplace.
In our submission to the inquiry, fellow researchers Professors Ann O’Connell and Ian Ramsay of Melbourne Law School, Associate Professor Michelle Welsh of Monash Business School and I argue that better detection and greater enforcement via existing powers might be the most effective way of dealing with this sort of illegal activity.
Defining illegal phoenix behaviour
It’s important to note that not all phoenix activity is illegal. Our ongoing research identifies <a href="https://law.unimelb.edu.au/cclsr/centre-activities/research/major-research-projects/regulating-fraudulent-phoenix-activity" target="_blank">five categories of phoenix activity</a> - only three of which are illegal.
For instance, it is reasonable to expect that a failed business person will try to start their next business in the same industry and will want to buy assets from the failed company. In the construction industry, it is common for each large building project to be executed by a separate company that forms contracts with its subcontractors.
Each project succeeds or fails on its own merits without affecting other projects or the parent company’s solvency. Therefore high rates of company formation and liquidation do not automatically equate to high levels of illegal behaviour or improper exploitation of the corporate form.
In Australia, one of the difficulties in assessing the incidence, cost and enforcement of phoenix activity is the general paucity of reliable data. The mere fact of company creation and liquidation is not evidence of illegality.
Australian Bureau of Statistics data about <a href="https://www.propertyobserver.com.au/https://www.abs.gov.au/ausstats/abs@.nsf/mf/8165.0" target="_blank">company registrations and insolvencies</a> reveals that the total number of insolvencies in the construction industry for the period of 2013-2014 was 1,802.
Not all of these insolvencies would have involved illegal phoenix activity. While this is a large number, it represents only 0.54% of the total number of companies that were operating in that sector at the start of the 2013 financial year. There are eight other sectors where the number of insolvencies as a percentage of registered companies was greater than it was in the construction sector.
This is not to deny the prevalence of illegal phoenix activity in the construction industry; rather it should prompt better data collection from relevant regulators.
The bad forcing out the good
People associated with the industry warn that when the incidence of illegal phoenix activity reaches a critical point, other companies in the industry will face a difficult choice between succumbing to the same illegal behaviour or else risking being priced out of business.
We have heard of “net of tax tendering”, where it is so well understood that taxes will not be paid that quotes are calculated on that basis. In these instances it is likely that the head contractor or client knows that the tender does not allow for tax to be paid; otherwise, the contract would be unprofitable. Within corporate groups, the apparent use of labour hire companies, created purely to accrue PAYG(W) and payroll tax debts before being liquidated, is also concerning.
There are also some characteristics of the construction industry that make debt recovery particularly difficult. The sub-contracting system is a key feature of major building works. The head contractor undertakes to perform the contract and is paid for it by the client. Work is then contracted out through layers of sub-contractors.
The various layers of sub-contractors must complete statutory declarations that they have paid their employees and other debts, in order to receive payment from the contractor above them. We have heard that the use of false statutory declarations is common in the industry, and ASIC is currently investigating this.
Recovery of unpaid wages and other entitlements is also fraught. Employees may not be sure of the company name of their employer which may change from payslip to payslip, remaining unaware that their employment is now with a new employer who has no liability for wages or other entitlements accrued previously.
The industry employs high numbers of temporary migrant workers whose knowledge of their entitlements may be minimal. Backpackers on 457 visas can lose their employment and their employer’s sponsorship if they question the payment of their entitlements, and are then forced to return home. Recovery of redundancy entitlements is especially problematic in the construction industry.
Law reform
It might be assumed from this discussion that law reform is required, and that at the very least, a specific phoenix offence should be introduced. We urge caution. Directors’ duties already capture the essence of illegal phoenix activity.
There are also other mechanisms – director disqualifications and director penalty notices amongst them – which are available to regulators even in the absence of proof of improper intent. Better detection and greater enforcement via existing powers should be considered first.
Helen Anderson is Associate Professor, Melbourne Law School, at the University of Melbourne. She can be contacted <a href="https://www.law.unimelb.edu.au/melbourne-law-school/community/our-staff/staff-profile/username/Helen%20Anderson" target="_blank">here</a>.
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jchancellor-FAypfDUnLy

Is illegal phoenix activity rife among construction companies?

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The Federal Court has ordered Quantum Housing Group Pty Ltd to pay $700,000 in penalties for making false or misleading representations relating to the National Rental Affordability Scheme (NRAS).
Between February 2017 and July 2018, Quantum sent a series of misleading letters and emails to at least 450 investors who had rental dwellings participating in the NRAS scheme, and pressured them to terminate their arrangements with their existing property managers and instead use property managers approved or recommended by Quantum.
Quantum failed to tell investors that it had commercial links with the property managers it recommended.
Quantum also told some investors that their existing property manager had not properly managed their property’s compliance with the NRAS, when this was not true.
“This conduct was blatant, planned and deliberate in an effort to trick investors into switching from their preferred property managers,” ACCC Chair Rod Sims said.
Quantum admitted that it falsely represented that property managers must meet accreditation guidelines issued by Quantum, and that investors who failed to appoint an approved property manager were in default of their agreement with Quantum and risked losing their NRAS incentives.
The Court also ordered Quantum’s director, Cheryl Howe to pay $50,000 in penalties for being knowingly concerned in Quantum’s breaches of the Australian Consumer Law. Ms Howe was also disqualified from managing a corporation for three years.
“The penalties ordered against Quantum and Ms Howe serve as a warning that making false or misleading statements will result in serious consequences not just for the company involved but also any executive or employee found to be knowingly concerned in the conduct,” Mr Sims said.
Quantum and Ms Howe admitted liability and made joint submissions to the Federal Court with the ACCC.
The ACCC had also alleged that the conduct engaged in by Quantum was unconscionable conduct. However, the Court found the admitted conduct did not depend on exploiting vulnerability on the part of investors, and in those circumstances was not satisfied that the conduct was unconscionable.
Quantum ceased trading in December 2019 and is in liquidation.
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j.ballantyne1990-6AQqhLzZaK

Quantum Housing to pay $700,000 for misleading property owners: ACCC

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The Federal Court of Australia has found Dover Financial Advisers Pty Ltd (Dover) engaged in false, misleading or deceptive conduct.
According to the court the conduct in question involved publishing false, misleading or deceptive statements in a “Client Protection Policy” (Protection Policy) between around 25 September 2015 and 30 March 2018.
The Court found that Terrence (Terry) McMaster, Dover’s sole director, was, as a question of fact, knowingly concerned in that conduct, and was satisfied it was appropriate to make a declaration that Mr McMaster had contravened section 12DB(1)(i) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
In the judgment, his Honour Justice Michael O’Bryan found that the title of the Protection Policy “was highly misleading and an exercise in Orwellian doublespeak. The document did not protect clients. To the contrary, it purported to strip clients of rights and consumer protections they enjoyed under the law”.
The Protection Policy was provided to 19,402 clients with statements of advice by representatives of Dover. The Protection Policy purported to be 'designed to ensure that every Dover client get [sic] the best possible advice and the maximum protection available under the law’.  The Court found that the policy was false, misleading or deceptive in circumstances where:
1. it did not ensure that clients received the maximum protections available under the law; 2. it purported to remove or dilute the protections that clients would otherwise have had under the law; 3. it sought to prevent clients from making a claim against Dover and its authorised representatives on the basis that advice could not be understood; 4. it sought to exclude Dover’s liability for most foreseeable breaches of the law by its authorised representatives; and 5. it sought to limit or exclude Dover’s liability to clients in a way that was inconsistent with the law.
The Court also found, as a matter of fact, Mr McMaster, Dover’s sole director, Key Person named on Dover’s Australian Financial Services Licence and a Responsible Manager during the relevant period, was knowingly concerned in Dover’s contraventions, having regard to concessions by Mr McMaster, including that he was responsible for:
1. determining and/or approving the Protection Policy; and 2. requiring Dover’s representatives to incorporate the Protection Policy with statements of advice provided to clients.
‘ASIC brought this case because it believed Dover’s Client Protection Policy was misleading and deceptive. The law imposes important obligations on companies licenced to provide financial advice and for the protection of their clients. Clients who receive financial advice should not be misled as to what those obligations are and what they mean for them and their interests’, ASIC Deputy Chair Daniel Crennan QC said.
His Honour rejected the defendants’ primary submission that because ASIC had not sought to prove that any Dover client had suffered loss or damage by reason of the Protection Policy then the defendants had not engaged in misleading and deceptive conduct within the meaning of the ASIC Act.   
In delivering his reasons for judgment, Justice O’Bryan noted that there had been a contravention of the law each time the Protection Policy was sent to a client, being 19,402 times.
Penalties will now be determined by the Court on a date yet to be fixed.
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