Insolvencies

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EXPERT INSIGHT

The vast arsenal of fiscal, monetary and legal measures used by Australian governments to offset the COVID-induced economic crisis have worked well. They did not prevent a recession (popularly defined as two quarters of negative GDP growth) but things could have been much worse.

What is particularly interesting is that the expected consequences have not shown up in the official statistics for financial distress – insolvent companies entering administration and individuals declaring bankruptcy.

Indeed, a misleading impression of 2020 being one of “economic good times” could be gained from the statistics.

The big question is whether these statistics show government relief measures have averted economic pain or simply deferred it. As measures are wound down and withdrawn, will the private sector be willing and able to pick up the resulting slack?

Companies entering administration

There are, of course, “lies, damn lies, and statistics”. The figures hide what is likely to be actually happening in terms of financial distress.

Impacts on businesses and individuals have been quite varied. Some large corporations have come through in good shape, much better than might have been imagined. But the tourism, hospitality, entertainment and higher education sectors have taken significant hits and face an uncertain and drawn-out recovery.

<a href="https://download.asic.gov.au/media/5946060/asic-insolvency-statistics-series-1-published-february-2021.xlsx">Using data</a> from the Australian Securities and Investments Commission, shows the number of companies entering external administration (quarterly from 2010 to 2020).

Notable is the decline in business collapses in 2020 – the opposite of what one would expect in a time of economic stress.

A number of policy actions contributed to this.

The most obvious contributors to keeping failing businesses alive were JobKeeper payments as well as changes increasing “<a href="https://asic.gov.au/about-asic/news-centre/articles/directors-duties-in-the-context-of-covid-19/">safe-harbour protections</a>” to reduce the risk of prosecution for trading while insolvent. These changes also reduced the ability of creditors to speedily force a debtor company into insolvency.

In many cases it is quite possible these simply put off that day to some time in 2021.

Individuals declaring bankruptcy

At the personal level, which includes owners of small unincorporated businesses, a similar pattern can be seen.

The next uses data from the <a href="https://www.afsa.gov.au/about-us/statistics/quarterly-personal-insolvency-statistics">Australian Financial Security Authority</a>. It shows the number of individuals entering into insolvency (bankruptcy, debt agreements etc) on a quarterly basis. The latest data is for the September quarter of 2020. The number had fallen to about half of what it had been prior to 2020.

Notably, the number of personal insolvencies began falling in early 2018. There is no obvious single explanation for this trend, though good economic conditions and low interest rates are probably part of the story.

The further decline in 2020 (in contrast to expectations of an increase) is most likely due to legislative changes introduced in March 2020 and extended in September 2020. These include increasing the size of debt owed before a creditor can initiate action from A$5,000 to A$20,000, and allowing debtors six months (rather than 21 days) to respond to creditor demands. Mortgage repayment deferrals by banks also would have helped.

A difficult balancing act

What to make of these unexpected declines in official indicators of financial distress when economic conditions have surely increased the reality?

The more optimistic interpretation is that various government support measures have prevented both business and individuals sliding into insolvency.

The less optimistic interpretation is the measures have simply deferred the final outcome – with the statistics soon to show a bounce in business failures and personal insolvencies.

There is no point keeping “zombie” businesses alive, nor in dissuading heavily indebted individuals from taking action under insolvency arrangements that can give them a fresh start.

But finding the right balance of continuing support for recoverable cases while terminating it for others (and limiting the hardship caused by failure) is a difficult and challenging task for our economic masters.<img alt="The Conversation" height="1" src="https://counter.theconversation.com/content/155744/count.gif?distributor=republish-lightbox-basic" width="1" x21hkp71h="">

<a href="https://theconversation.com/profiles/kevin-davis-3497">Kevin Davis</a>, Emeritus Professor of Finance, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a>

This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/hard-bump-ahead-drop-in-insolvencies-and-bankruptcies-is-a-ticking-time-bomb-155744">original article</a>.
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kdavis

Hard bump ahead? Drop in insolvencies and bankruptcies is a ticking time bomb

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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).
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pwargent-M4siyDbqQY

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

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GUEST OBSERVER 
 
Ahead of the budget, the government has announced new rules that will allow small businesses at risk of collapse to continue to work out their problems instead of appointing an administrator.
They are needed because of an avalanche of insolvencies awaiting the end of an effective moratorium on bankruptcies (a so-called “regulatory shield”) that expires at the <a href="https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/extension-temporary-relief-financially-distressed" target="_blank">end of December</a>.
Since it was introduced in March the number of companies entering external administration has been unusually low compared to earlier years (at a time of unusually bad conditions) suggesting a buildup of zombie companies waiting to die.
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Number of companies entering external administration
<a href="https://images.theconversation.com/files/360148/original/file-20200927-18-82272w.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img src="https://images.theconversation.com/files/360148/original/file-20200927-18-82272w.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" alt=""></a> Twelve months to each week (red) versus previous twelve months. <a class="source" href="https://asic.gov.au/regulatory-resources/find-a-document/statistics/insolvency-statistics/insolvency-statistics-series-1b-notification-of-companies-entering-external-administration-weekly-update/">ASIC</a>
<hr>
The new rules will allow insolvent small businesses with liabilities of less than A$1 million to keep trading under the eye of a <a href="https://ministers.treasury.gov.au/sites/ministers.treasury.gov.au/files/2020-09/Insolvency-Reforms-fact-sheet.pdf">small business restructuring practitioner</a> for 20 days while they develop a restructuring plan to put to creditors rather than surrender control to an external administrator.
If half the creditors by value endorse the plan it will be approved and the business can continue under its present ownership with assistance from the restructuring practitioner. If not, it can be put out of its life quickly under a proposed simplified liquidation process.
Existing laws give directors little leeway
Under the current insolvent trading law, directors are expected to immediately stop the trading when they know or have reasonable grounds to suspect the company is insolvent. Directors who “give it a go” and try to trade their way out of financial difficulty face severe legal consequences: personal liability, a fine of up to <a href="https://www.asic.gov.au/about-asic/asic-investigations-and-enforcement/fines-and-penalties/">$1.11 million per offence</a> or a prison sentence of up to 15 years in extreme cases.
The only way to avoid these penalties is to quickly place the company in the hands of the administrator who temporarily manages the business until the company’s creditors make a decision on the company’s fate.
Its a regime not particularly suited to small businesses.
The proposed new rules can be seen as a tacit admission of the failure to the “<a href="https://www.bdo.com.au/en-au/accounting-news/accounting-news-may-2018/safe-harbour-insolvency-reforms">safe harbour</a>” law reform of 2017. Applicable to all companies irrespective of size, it protects directors from personal liability for debts incurred by an insolvent company if they took a course of action “reasonably likely to lead to a better outcome” for the company and its creditors than administration or liquidation.
Anecdotal evidence suggests it is largely shunned by small businesses in part because of its uncapped cost. The fees of small business restructuring practitioners will be capped.
The new laws will create breathing space
The new rules are based on <a href="https://www.investopedia.com/terms/c/chapter11.asp">Chapter 11</a> of the United States Bankruptcy Code, with important differences.
The US law applies to all Companies, not just to those with debts of less than $1 million. And it gives the court an oversight role.
The absence of judicial supervision in what’s proposed for Australia is a double-edged sword. Court involvement generally means delays and high costs.
On the other hand, it provides a valuable check against abuses – such as the deliberate liquidation and rebirth of “<a href="https://www.dissolve.com.au/information-centre/what-is-a-phoenix-company/">phoenix companies</a>” in order to avoid paying debts.
In Australia, that’ll be the role of the small business restructuring practitioner.
It’s not yet clear how they’ll work
It won’t be a panacea for small businesses. They will be required to lodge any outstanding tax returns and pay any employee entitlements before a plan can be put to creditors.
In the current circumstances many small businsses will not be able to comply.
There’s much we don’t yet know about what’s proposed. The government’s briefing says time and cost savings will be achieved through “<a href="https://ministers.treasury.gov.au/sites/ministers.treasury.gov.au/files/2020-09/Insolvency-Reforms-fact-sheet.pdf">reduced investigative requirements</a>”. It is unclear to what the extent the liquidator’s wide investigative powers into reasons for business failures will be curtailed.
The changes are likely to have profound implications for many stakeholders, including creditors, employees and the general community.
It is important that the government consults properly before the new rules are put to parliament in time for their introduction on January 1.<img src="https://counter.theconversation.com/content/146833/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/anil-hargovan-2086">Anil Hargovan</a>, Associate Professor, <a href="https://theconversation.com/institutions/unsw-1414">UNSW</a>
This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/were-facing-an-insolvency-tsunami-with-luck-these-changes-will-avert-the-worst-of-it-146833">original article</a>.
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j.ballantyne1990-6AQqhLzZaK

Australia is facing an insolvency tsunami

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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.
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Insolvency and bankruptcy spike due to Covid-19: AFSA

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The collapsed apartment developer the Ralan Group has been operating insolvent since at least 2014.
That's the view of administrator Grant Thornton, who have submitted their final report to ASIC.
"Based on our investigations, The Ralan Group has been operating insolvent since at least 30 June 2014," the report noted.
"Our in-depth investigation has found that The Ralan Group was trading insolvent from at least February 2014 when its primary builder, Steve Nolan Construction entered into Voluntary Administration and it relied on released purchaser deposit monies to bail itself out of the financial hole.
"It never recovered from this event. At no time from 2014 onwards was The Ralan Group in a position to pay all creditors in full."
The Ralan Group, one of the country's biggest private apartment developers, <a href="https://www.urban.com.au/news/102095-william-o-dwyer-s-ralan-hits-voluntary-administration" target="_blank">fell in to administration earlier this year</a> with estimated debts of around $500 million. Debts at collapse were $564 million.
It's been revealed banks and financiers are owed $238 million, while individuals and creditors are owed a further $241 million.
There are around 1,500 individual creditors.
Grant Thornton suggest it is difficult to say how much creditors could get back, however they estimate between "nil to two cents in the dollar."
Funds came in to the group over the last three years from lenders who provided finance, the sale of properties from completed developments and purchasers who agreed to release their deposit in return for interest of between 15 per cent and 20 per cent.
Grant Thornton believe the practice of Ralan Group boss William O'Dwyer broke the law.
"We believe there is evidence that several sections of the Corporations Act have been breached." Thornton advised.
Creditors will now be given the opportunity to consider the report at the second meeting of creditors to be held on 9 December where the future of the Group will be determined.
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jrobinson-rf4aSBido9

Collapsed Ralan Group was insolvent in 2014

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Personal insolvencies fell in all states and territories except New South Wales, according to the latest released by the Australian Financial Security Authority (AFSA). 
Personal insolvencies include bankruptcies, debt agreements and personal insolvency agreements, but do not include corporate insolvencies.
The statistics show that the number of new personal insolvencies fell 9.7% from the September quarter 2017, from 8194 to 7400. New South Wales was the only state or territory to record a rise (0.4%).
The rise in New South Wales was due to a rise in debt agreements.
New South Wales and the Australian Capital Territory were the only areas with a rise in debt agreements or personal insolvency agreements.
Bankruptcies fell in all states and territories except Western Australia.
Bankruptcies reached a record quarterly low in South Australia.
They reached their lowest level in a quarter in Tasmania since the March quarter 1989.
In the September quarter 2018, 17.8% of new debtors entered a business related personal insolvency. The highest proportion was in Western Australia (21.6%).
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Personal insolvencies are down everywhere except NSW

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There were 31,859 personal insolvencies in 2017–18, which is the largest annual number of personal insolvencies since the record of 36,539 set in 2009–10, according to the latest report from AFSA the Australian Financial Security Authority.
The number of personal insolvencies rose by 5.6% in 2017–18 compared to 2016–17. 
Comprised of a 3% increase in bankruptcies, a 9.1% increase in debt agreements and a decrease in personal insolvency agreements of 12.3%.
<img src="https://www.urban.com.au/images/2018/7/19/AFSA%20Chart%201.JPG" alt="">
Personal insolvencies reached record annual levels in Northern Territory and Western Australia in 2017–18.
The 14,834 new debt agreements in 2017–18 was the highest annual number on record, and represents the seventh consecutive annual increase.
Debt agreements were at record annual levels in all states and territories except Tasmania.
There were 214 new personal insolvency agreements in 2017–18, a fall of 12.3% from 244 in 2016–17.
Personal insolvency agreements fell to a record annual low in Victoria.
Personal insolvencies reached record annual levels in Northern Territory (352) and Western Australia (4,020) in 2017–18.
<img src="https://www.urban.com.au/images/2018/7/19/AFSA%20Chart%202.JPG" alt="">
Bankruptcies jumped to 16,811 in Australia in 2017–18, an increase of 3.0% from 16,320 in 2016–17.
The annual rise in bankruptcies is the largest since 2008–09, with the only other rise of 0.2% occurring in 2015–16.
Despite this rise, the number of bankruptcies is below 2008–09, when there were 27,520 bankruptcies.
The annual rise in bankruptcies in 2017–18 was the result of increases in the Northern Territory (31.7%); Tasmania (11.0%); Western Australia (10.6%); New South Wales (3.0%); Queensland (2.9%); South Australia (0.6%).
These increases were partly offset by falls in the Australian Capital Territory (5.6%) and Victoria (5.4%).
Bankruptcies reached an annual record high of 158 in the Northern Territory this year.
<img src="https://www.urban.com.au/images/2018/7/19/AFSA%20Chart%203.JPG" alt="">
There were 14,834 new debt agreements in 2017–18, an increase of 9.1% from 13,597 in 2016–17.
This is the highest annual number of debt agreements on record and represents the seventh consecutive annual increase.
Debt agreements have increased as a proportion of total personal insolvencies from 23.4% to 46.6% since 2008–09.
Debt agreements increased in 2017–18 compared to 2016–17 in all states and territories.
All states and territories reached record annual highs except for Tasmania.
There were 332 debt agreements in Tasmania, two less than the record level of 334 set in 2012–13.
<img src="https://www.urban.com.au/images/2018/7/19/AFSA%20Chart%204.JPG" alt="">
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Insolvency, debt agreements and bankrupcy continued to grow this year: AFSA

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GUEST OBSERVER
The introduction of legislative changes which require directors of construction companies to undertake mandatory formal education qualifications in business management will help reduce construction insolvencies.
The latest ASIC Insolvency Statistics to June 2015 highlights that of the 9,177 companies placed into insolvency during the 2014-15 financial year, 1,590 (17.3%) were from the construction industry. Annual financial losses attributable to the construction industry are estimated to be around $2 billion. 
Transcripts from the current Senate inquiry into insolvency in the Australian construction industry emphasise the need for further education of company directors. Findings will be released on 3 December 2015.
Historically, construction is the most prominent industry represented in Australia’s insolvency statistics as reflected in ASIC’s Insolvency Statistics report. 
If mandatory business management education was introduced which better equips directors to deal with economic and environmental changes impacting their businesses, I believe the insolvency figures for this sector could be reduced by hundreds of companies each year. The registered clubs industry provides an excellent framework to follow from an education perspective. 
A second issue that needs to be addressed is subcontracts being paid in a timely manner by the head contractor or larger organisations. The solution could possibly be the cascading of credit terms.  Smaller contracting firms are often put under significant financial pressure by a larger organisation’s long payment lead times which is contributing to many falling victim to insolvency.
From 1 July 2013, a training framework for club industry directors and managers came into effect under The Registered Clubs Amendment (Training) Regulation and will be enforced from 1 July 2016. Directors in this industry are required to undertake two courses.  These include Director of Foundation and Management Collaboration and also Finance for Club Boards, conducted by Clubs NSW and approved by the Director General of The Office of Liquor, Gaming and Racing.
If business management education is to be made mandatory for the construction industry, training requirements need to be legislated and training providers such as the Master Builders Association should be government accredited to deliver this training. 
The key message identified in the transcripts from the present Senate inquiry relates to the current deficiencies of the professional training regime in the industry. In short they simply don’t exist. Senator Doug Cameron highlighted a lack of training in the industry due to the allocation of financial resources elsewhere, while the Australian Institute of Building contends that professional qualifications are needed and also that the industry lacked financial skills.
My recommendation is that the current White Card certification system, which is used by Work Cover is enhanced for those seeking to become directors or sole traders of construction businesses to include business management skills. TAFE could also introduce as a mandatory inclusion, a business management unit in all of its construction courses. 
The Senate inquiry is a positive step however it has been done before with few changes emanating from it. Therefore the appropriate information needs to be extracted from the inquiry and then passed onto the Economics Reference Committee Senators to implement suitable changes including new legislation to address the industry shortcomings.
There are several reasons why the construction sector has the highest levels of insolvency in the country. These include the barriers to entry into this industry are relatively low, with businesses allowed to enter and exit with little intervention or opposition from authorities. At the smaller end of the industry, clandestine companies can be set up on a project by project basis with directors using the corporate veil to protect themselves from financial accountability.
At the bigger end of the spectrum, the construction industry is highly volatile as it is significantly affected by economic, environmental and political factors. The large sums of money that are involved with this sector make it vulnerable to changes such as fluctuations of the Australian dollar, building and sustainability industry policy changes and urban development amendments made at State and Federal government levels.
The construction industry creates thousands of jobs each year and generates tens of billions of dollars for the economy. The government needs to act immediately to reduce insolvencies within this sector. One of the most effective ways to achieve this would be the implementation of legislation requiring all directors and managers working within the construction industry to acquire accredited business management qualifications.
 
Sean Wengel is insolvency principal, William Buck and can be contacted <a href="https://www.williambuck.com" target="_blank">here</a>.
 
 
 
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