Tag: Business Asset Protection

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Case study – the covid ate the estate agent’s homework?

Dog ate my homework

DC Partners (Solutions) Pty Ltd working with a financier client recently had collections dealing with an estate agent where the agent alleged it could not pay ‘factored monies’ because of Covid-19.

In December 2019, the agent factored its rent-roll management cheque for March 2020, expecting to receive around $52,000.

Factoring is the business of purchasing accounts receivables.

In this instance, the estate agent ‘sold’ its March 2020 receivable in exchange for an upfront sum paid in December 2019.

At the end of March 2020, the agent then said it was unable to repay the factor the money (or any of it, despite banking it for themselves at the end of March) “because of Covid-19“.

Factoring ‘discounts’ the purchase price of the receivable. The price paid upfront in December 2019, was based upon the time value of money with the expectations that the funds would be banked in March 2020. Obviously, the funds do not have the same value if the funds are not banked until June or later.

The agent is a well known agent from WA.

If a crime was committed, it was a crime of fraudulent appropriation. Alternatively, as was pointed out to the agent in collections discussions, the agent runs the very real risk that the estate agent continues to trade whilst insolvent, exposing the directors to personal liability. In those instances the agent’s personal assets are exposed to creditors.

If your business is in a similar position, being unable to meet obligations to creditors, there are some important steps that you and your company need to take to protect your personal AND business assets. These can be discussed on 1300-327123 if you find yourself if this position (call anytime till late 5 days).

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Craig Matthew Adams – former proprietor of Golden Arrow, Mikara Developments, Bargo Developments, Key Asset Management and more

craig adams

Craig Matthew Adams (“Craig”), who lists his occupation as “investor”, is a former company director.

Craig came to DCPLH’s attention related to several insolvent companies liquidated in mid to late 2018.  The group of companies includes:

  1. Golden Arrow International Pty Ltd
  2. Bargo Developments Pty Ltd
  3. Mikara Developments Pty Ltd
  4. Mikara Investments Pty Ltd
  5. Greenviews Castle Hill Pty Ltd

Craig is personally bankrupt.  A copy of the sequestration order is viewable here.

Craig was personally liable for a debt of $4m (plus interest) from Mohan Kumar.  DCPLH is the assignee of Mohan Kumar for the fruit of that debt.  DCPLH is also the assignee of Reliance Leasing for a small debt owed by Craig and Bargo at the time of Craig’s bankruptcy.

Craig was made bankrupt on 13 December 2018 by a debt owed to Australasian Property Group Pte Ltd (“Australasian”).  Craig trustee in bankruptcy is Andy Scott of PWC.

Presently, Craig’s debt to Australasian is $2,059,753.46 (as at 31 May 2019).  Australasian are yet to recover the alleged debt (as at 31 May 2019) according to published documents.

Craig’s creditor’s report is available for inspection here.

 

 

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What is a creditors statutory demand?

The Corporations Act 2001 (“the Act”) provides for the conducting of business by a corporation in Australia.

Section 459E of the Act provides that a corporation may be served a statutory demand by a creditor (i.e. a creditor’s statutory demand) relating to (subsection 1):

                     (a)  a single debt that the company owes to the person, that is due and payable and whose amount is at least the statutory minimum; or

                     (b)  2 or more debts that the company owes to the person, that are due and payable and whose amounts total at least the statutory minimum.

 

Once served with such a demand, a company cannot ignore the demand.  The most serious of possible consequences for the company are now rolling out.  There are no friendly rules or casual arrangements, strict compliance with the demand is necessary by law.

Requirements

 

There are further other requirements such as:

             (2)  The demand:

                     (a)  if it relates to a single debt–must specify the debt and its amount; and

                     (b)  if it relates to 2 or more debts–must specify the total of the amounts of the debts; and

                     (c)  must require the company to pay the amount of the debt, or the total of the amounts of the debts, or to secure or compound for that amount or total to the creditor’s reasonable satisfaction, within 21 days after the demand is served on the company; and

                     (d)  must be in writing; and

                     (e)  must be in the prescribed form (if any); and

                      (f)  must be signed by or on behalf of the creditor.

             (3)  Unless the debt, or each of the debts, is a judgment debt, the demand must be accompanied by an affidavit that:

                     (a)  verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and

                     (b)  complies with the rules.

 

The key words above in each of the subsections are the words Must and AND.

The above requirements of the Act’s provisions are cumulative.  Skip any of the requirements and the consequences for the creditor’s demand is that it is potentially defective.

What happens next

Once a creditor’s statutory demand has been served upon a company, several things can happen:

  1. the recipient company pays the debt in full
  2. the company contacts the creditor and they negotiate a settlement
  3. the company applies to have the demand set aside – for instance if there has been a genuine disputing of the debt.
  4. the company does not respond, and the creditor applies to have it wound up

 

Next steps

If your company has received a creditor’s statutory demand, you have no time to waste.  Go straight to our “what to do next blog for further next steps – click here to book a consultation.

 

 

Call anytime on 1300-327123.

To view related blogs, follow the following category links and tags below.

 

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Welcome to Business Asset Protection

This post launches our blog series where we will discuss a range of topics which are perhaps important to those holding assets, their advisors, mortgage brokers and private lenders and others.

In the coming week/s this blog will discuss:

  • A range of relevant legal terms and their meaning/s.
  • Securities in Australian law such as the PPSA, common law and otherwise.
  • Insolvency – including personal and corporate insolvency.
  • some case studies.
  • various legal remedies, and
  • other related topics.

We welcome your feedback, or if you’d like to submit a question or comment – please complete the form below.

Mark Smith, Director   IMG_2744

Business Asset Protection

www.assetprotection.biz