Frequently

There are two forms of insolvency, a) a company is unable to pay its debts as they fall due; b) the company’s liabilities are greater than its assets.  With respect to a), the most obvious early warning signs are a significant lag on payments to trade creditors.  Also, if a company is unable to pay PAYE or GST.  With respect to b), the balance sheet will show assets v liabilities.  However, thought should be given to whether any goodwill component is relevant and whether the proper value of the assets are reflected by the depreciation schedule.

Reckless or insolvent trading is where a company is traded in a manner likely to create substantial risk of serious loss to creditors. Once a director is aware a company is insolvent, or near insolvency, they must undertake a sober assessment of the company’s prospects. Accordingly, there is a grace period but directors should act during this brief period by taking professional advice which they are entitled to rely on in performance of their duties. If a director takes no steps and fails in their duties then they can be charged by the Crown or more likely face a civil court action.

A person, trust or company can generally only be liable for debts of another company if they have personally guaranteed the debts. For example, a director may have to provide a personal guarantee upon the company borrowing money from the Bank or upon opening a credit account with a supplier.

A company can enter into informal or formal compromises with creditors. A formal compromise is a statutory process whereby the company would put a proposal for repayment to its creditors and, if accepted, means that all creditors are bound to the proposal and unable to take further enforcement action.

A receiver is appointed by a secured creditor to realise assets that are subject to that creditor’s security interest e.g. vehicle finance company appointing receiver to repossess car and realise its value, or a bank appointing a receiver to a property owning company whose mortgage is in default to sell the property. A liquidator is appointed to a company to act on behalf of all creditors, not just the appointing creditor and has greater statutory powers than a receiver in dealing with the company and obtaining the best outcome for all creditors. For further information on liquidations click here.

Bankruptcy is the formal process of insolvency for an individual, as opposed to liquidation which is for a company. Just because a company is placed in liquidation, that does not mean the director is bankrupt. A company and its directors are obviously different legal entities with different liabilities and obligations. If you wish to understand further, please contact us for some simple no obligation, free advice.

A liquidator will provide a first report to all known creditors. If you do not hear from the liquidator please get in contact. Who the liquidators are, and any published reports will be on the Companies Office website under the company in liquidation. It is important that you complete a creditor claim form and return it to the liquidator.