Insolvency

30.07.2026
Listening Time:
20 minutes

Insolvency (Part 1): What Every Adviser Must Know About Solvency, Risk and the ATO Crackdown

By
Velocity Legal
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Key Insights
  • Financial statements do not always show the real solvency position. A company may appear solvent on paper, but the position can be more complicated if assets are tied up in shareholder transactions, related party dealings or amounts that may not be readily recoverable. Advisers need to look beyond the balance sheet when assessing solvency risk.

  • Division 7A issues can compound financial distress. Informal loan arrangements, unpaid present entitlements and related party transactions can create tax consequences under Division 7A. If these issues are not managed properly, deemed dividends and compliance failures can increase pressure on the company and its directors at the same time solvency concerns are emerging.

  • Delayed action can turn tax and structuring issues into enforcement risk. Poor structuring or failure to address issues early can escalate into statutory demands, Director Penalty Notices and personal exposure for directors. With ATO scrutiny increasing, advisers and directors should identify related party, Division 7A and solvency issues before the matter becomes an enforcement problem.

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Solvency is not always as simple as looking at the balance sheet.

In Part 1 of this three-part Explain That series on insolvency, Andrew Henshaw is joined by Demian Walton to discuss how solvency should be understood in practice, and why businesses, directors and advisers need to look carefully at what sits behind the financial statements.

The episode explores how company accounts can misrepresent solvency, particularly where assets are tied up in shareholder transactions, related party transactions, informal loan arrangements or unpaid present entitlements. These issues can also intersect with Division 7A, creating tax consequences that may increase pressure on both companies and directors.

The discussion covers:

  • what insolvency means in practice;
  • why financial statements may not tell the full solvency story;
  • how shareholder transactions and related party transactions can affect the analysis;
  • the interaction between insolvency risk and Division 7A;
  • informal loan agreements and unpaid present entitlements;
  • how deemed dividends can create significant tax consequences;
  • the ATO’s increased scrutiny, audits and compliance activity;
  • the importance of benchmark interest rates and integrity measures;
  • potential relief under section 109RB;
  • how delayed action or poor structuring can lead to statutory demands;
  • Director Penalty Notices and personal exposure for directors; and
  • why advisers need to understand the overlap between insolvency law and tax risk.

A practical discussion for advisers, accountants, directors and business owners navigating corporate distress, ATO pressure, related party transactions or high-debt business structures in the post-COVID business landscape.

For advice on insolvency, director exposure, ATO audits, Division 7A issues or restructuring risk, contact Velocity Legal’s Insolvency and Tax teams.

0:00
You're listening to Explain That by Velocity Legal, the podcast that keeps business owners and professional advisers ahead of the curve in an ever-changing legal landscape.

Welcome back to another episode of Explain That by Velocity Legal.

0:16
I'm joined by Director Demian Walton, who's a director in Velocity Legal's Disputes and Insolvency practice.

Firstly, welcome to the show, Demian.

Thank you, Andrew.

Demian, you're a commercial litigator, insolvency expert with more than 20 years of experience. And I understand today we're going to be talking about distressed businesses, what options are available for them?

0:37
And I'd love to get your thoughts on this, but it seems like this is a, you know, it's a very timely discussion because we've had cost of living rises, interest rate rises, ATO cracking down on debt.

So it's probably a growth area after the years of COVID where things possibly were pretty flat.

0:54
Yeah. So it's timely because with the onset of the pandemic, the ATO put a pause on collecting tax obligations.

And this resulted in a lot of businesses using the tax office as a finance facility to keep operating.

1:16
Often operating businesses that aren't profitable, might not be viable.

And people almost forgot about tax and the ATO almost forgot how to collect tax.

And it's actually taken a few years for the ATO to reskill and start collecting outstanding tax obligations, and it's now doing it in a very aggressive manner.

1:45
Yeah, I think that's a good summary.

Well, in this part of the three-part series, we're going to be talking about insolvency and its consequences, and really start going through a few of these terms, maybe sort of clarifying some myths or misnomers, and then we'll be building on that.

And in Parts 2 and 3, we'll be talking about what options are available, and specifically about pre-pack transactions in Part 3.

2:08
So let's just start with a bit of a Dorothy Dixer. That is, what is insolvency?

Insolvency. Better to go back. What is solvency?

I've actually brought the Corporations Act definition because it's quite pithy, yet somewhat deceptive in its simplicity.

2:28
So what the Corporations Act says is the person is solvent if and only if the person is able to pay all the person's debts as and when they become due and payable.

The Corporations Act then helpfully says the person who is not solvent is insolvent.

2:50
Now, if you apply that definition in a literal way, a very large number of companies would be insolvent.

So, you know, say, for example, you have a company that has the rent due tomorrow.

3:09
There's a customer who's late in payment of the bill. It's expected the customer will pay next week.

Yeah.

And that'll put the company in funds to pay the rent. On one view, the company can't pay the debt that falls due tomorrow.

3:26
The Corporations Act says you have to be able to pay all your debts as and when they fall due.

So maybe for a few days, it's over.

Not really though. So happily, courts take a much more, necessarily, courts take a practical approach and they distinguish between short-term cash flow difficulties, which almost all companies face from time to time.

3:54
The credit crunch, you know, unexpected customers who don't pay.

That's exactly right.

So the courts distinguish between short-term cash flow difficulties that the company is able to manage and actual insolvency.

4:10
And I guess it's, you know, where's the line?

Well, it's probably where the line is.

So, for example, with the company that can't pay the rent that's due tomorrow, if, as a matter of practical reality, the landlord's not going to say boo when the rent is a week late, there's really no issue of insolvency.

4:32
Yeah. So it's a little bit more nuanced, subjective.

Whether or not you can pay all your debts when they are due and payable, there is actually some flexibility there.

Yeah, kind of mostly. But you mostly can, and overall you can.

4:48
You're going to be able to keep operating without being locked out of premises, without being sued.

And how does the financial statements and, you know, your statement of assets and liabilities, does that have any relevance at all to this about what's on the balance sheet for the company?

5:06
Yes. There's a bit of a misnomer that's referred to as balance sheet insolvency.

That's when people say that a company's balance sheet insolvent if its liabilities exceed assets, meaning it's got negative net assets.

5:27
Now, there are a lot of companies like that, particularly in a startup phase where, you know, the business owners are lending money to the company to operate.

And if you look at the balance sheet, because the company's been trading at a loss initially, there'll often be negative equity.

5:50
But the reality is that the business owners are not going to call up their loans and bring the whole thing to an end.

So I guess there's business law. Let's say the business owners kicked in $100,000, and until such time as a business owner says to the company, which is kind of one and the same, but this is a company, I want my $100,000 back.

6:12
It's not due and payable, right?

Even the simplest of loans, well, the simplest of loans are repayable on demand.

But even if there's a loan agreement that provides for the loan to be due at the end of June or the end of December, and the company can't afford to pay it, if the business owner isn't going to press for payment, which is a way of financially supporting the company, then the company would not be considered insolvent, I guess.

6:45
It's a bit more practical. It's a practical sort of reality situation.

Yeah.

Other way as well, where there's sort of a positive balance, but it's insolvent?

Yes. For example, you could have assets on the balance sheet that are very difficult to realise or convert into cash within a sufficient time frame to pay debts that need to be paid.

7:15
So in fact, you can have a company with a very valuable property and debts that are just a fraction of that value, but no one's willing to lend to the company to pay the debts.

7:31
The property can't be sold quickly.

So that would be a case where the company can be insolvent despite having an ostensibly healthy balance sheet.

7:46
So in assessing whether or not a company is insolvent or not, it sounds like a range of factors that you need to consider and essentially a bit of a judgement call needs to say, right.

Yeah. It's a judgement call and it is a matter of fact, because if the company is insolvent, it is insolvent.

8:09
Yes.

If it's solvent, it's solvent.

But working out the true position involves evaluating a number of factors.

I suppose going back to the balance sheet, you might look at current assets against current liabilities.

8:25
So that's assets that can be realised within the next 12 months compared to liabilities that have to be paid within the next 12 months.

That can be an indicator.

If bank finance isn't available, related parties don't have the willingness or ability to put money in.

8:45
Say, for example, the company's been operating at a loss for a significant time and it doesn't look like it's going to get any better.

That would be an indicator of insolvency.

The receipt of solicitors' demands, yes.

9:01
Being sued, yeah.

Paying superannuation contributions.

Not filing tax lodgements on time.

A few of those, and you're probably insolvent, yes.

9:16
Yeah. Well then I guess it's worth moving on to, okay, well, what if we're insolvent?

What are the consequences of a company being insolvent, and particularly what kind of blowback could hit directors personally? Because that's, for the business owners, usually the big concern is less so about the assets of the company, but the personal assets.

9:35
So probably the most common strategy that's used is to pretend the company's not insolvent.

Still is the head in the sand approach and kind of juggling creditors, paying them a little bit so they'll keep supplying, trying to keep the wheels moving, hoping that sales will improve, that a contract with a big customer will get signed.

10:06
And sometimes that happens.

Often it doesn't.

The most common approach, because almost in the vast majority of cases, especially small companies, liquidators work out that the company was insolvent well before action was taken to appoint an administrator or appoint a liquidator.

10:30
And that's the next point really, those consequences for a director are out to what, and how can they be made liable for insolvent operations of a company?

The classic liability is directors being made personally liable for insolvent trading.

10:52
And the way that works is directors have a positive duty to prevent a company from incurring debts that it's not going to be able to pay.

So that's kind of the, I suppose, the paradigm case.

Often also, directors will have signed guarantees to banks, to suppliers.

11:13
In the case of suppliers, often those guarantees have buried within them a charging clause that enables the creditor to lodge caveats against the director's home.

And then there's Director Penalty Notices.

11:32
Yes, with the ATO.

With the ATO, for PAYG.

Yeah, and now GST.

Well, not now GST, but GST is the most recent addition to that list as well, isn't it?

Yeah.

12:07
So it started with just superannuation and PAYG amounts, and directors could avoid liability by appointing an administrator or liquidator within the period allowed in the Director Penalty Notice, which is 21 days after the date of the notice.

12:24
The ATO and the government became concerned that actually a lot of employees' superannuation contributions weren't being paid, and directors were being given a get out of jail free card by appointing an administrator.

12:40
So the position with unpaid superannuation contributions is that the company doesn't pay them, the directors are personally liable.

They call that a lockdown amount, yes.

In a Director Penalty Notice?

No way out.

13:01
No way out, yeah.

With PAYG withholding amounts and now GST, there's still a way out by appointing an administrator, but that only applies where the company's been filing its BAS statements.

13:20
And it's been done within the 21 days.

Yeah. So, so long as the GST liabilities, the PAYG liabilities, were reported to the tax office within three months after they fell due, that'll be considered a non-lockdown amount.

So when the Director Penalty Notice arrives, directors can appoint an administrator or a liquidator within 21 days, and then they're not personally liable for those amounts.

13:45
And I suppose the takeaway from that is, even if you can't afford to pay the GST, even if you can't afford to pay the PAYG amounts, still file your statements.

Yeah.

And make sure you pay superannuation contributions as a priority.

And I guess you'd say this when the business owner maybe takes that approach.

14:01
We can trade out of this, but maybe they put their head in the sand about that lodging, or they fall behind on BAS.

It's really compounding the problem, isn't it?

It compounds the picture, and I totally understand not wanting to look at this horrible picture.

And it just gets worse and worse and worse and more unappealing to look at and address as time goes on.

14:19
But that said, the head in the sand approach eventually will end badly.

Yeah. And the GST is a big change as well because the amounts, you know, transacting with the GST system are quite large.

And that came in during COVID.

So, you know, understand people's attention was elsewhere.

14:37
And now we've got, you know, a business, the directors receive a DPN and the consequences are higher.

And I've also heard, you would have heard stories about this as well, of getting the DPN. The company then enters into a payment arrangement with the ATO.

14:52
It thinks, oh, this is all good for me.

But if it goes belly up, the DPN is still valid.

Yes, and the ATO is now less amenable to payment arrangements than it used to be.

So the ATO basically deliberately adopted a very lax approach when the pandemic hit because they were concerned about having a bloodbath.

15:21
It was as companies going broke, people losing their jobs, but now it's sort of gone, the pendulum has swung the other way.

I read a headline the other day that $35 billion of debt for small businesses, so the vast majority of this big debt amount is not big companies, it's small businesses.

15:42
It's mostly small businesses, yeah.

Yeah, well, that's the ATO.

What about other creditors, and what rights they might have specifically?

Yeah, creditors can do statutory demands.

Crazy.

Yeah.

Yeah. So that's a mechanism under the Corporations Act. A creditor who has a debt that's due and payable by the company can serve a demand giving the company 21 days to pay.

16:12
If the company disputes the demand, they can apply to the court to set it aside on the grounds of a genuine dispute.

But assuming that doesn't happen, or if the application to set the demand aside fails, the company then has to pay.

16:32
If the company doesn't pay, it's presumed insolvent for the purposes of a winding up application.

That would be a pretty effective mechanism.

And if you are chasing the debt or you're the company that gets one of these, are they pretty effective?

16:47
It's generally a last resort.

In terms of serving a statutory demand, sometimes people misapprehend that it's a cheap, easy way to recover a debt that a company is disputing, and then that can really backfire.

17:06
But assuming you have, say, a judgment, an unpaid judgment, or the company's admitted that it's liable, et cetera, demand can be the cleanest way to recover the debt.

If the company doesn't comply, then go back step.

17:26
The creditor can apply to wind up the company.

The application gets advertised on the ASIC website.

Other creditors learn about the proceeding. They jump in.

17:43
At that stage as well.

Will they jump in?

So you don't really know at the first hearing date how many creditors are going to be here.

If you have enough money to pay all of them at that first hearing, then you pay them and the court will dismiss the winding up application by consent.

18:05
But if the company can't pay, then it sort of rolls forward.

The company can defend the winding up application on the basis that it says it's solvent.

There's a difference between just not wanting to pay and being unable to pay.

18:24
So if it's the case of the former, not wanting to pay, could you still get wound up in that situation?

No, no.

Even if you don't have a good reason, if you've got plenty of money in the bank, you say.

18:39
I just don't want to pay it.

You're still solvent.

That one is about bank statement and the money in there exceeds the debt.

Yeah, interesting.

But that said, the court will want compelling evidence that a company's solvent, and this usually requires a kind of very detailed report from an accountant who's gone through the company's books.

19:04
Yeah. Probably not a good use of time or money.

It's not.

It's time or money. Yeah, yeah.

Well, that’s been really enlightening, Demian.

We've talked about insolvency, what it is, what it's not.

I've learned that you're insolvent when you're not solvent.

19:21
Also the consequences of that, consequences for directors.

We've talked also about the rights of the ATO, things like Director Penalty Notices and the rights of other creditors, including statutory demands and things of that nature.

So I want to thank you for being part of this part of this series.

19:36
In Part 2, we're going to be discussing what formal insolvency processes are available to business owners, and I'm really keen to pick up the conversation in Part 2.

Thanks, Demian.

Thank you, Andrew.

0:00
You're listening to Explain That by Velocity Legal, the podcast that keeps business owners and professional advisers ahead of the curve in an ever-changing legal landscape.

Welcome back to another episode of Explain That by Velocity Legal.

0:16
I'm joined by Director Demian Walton, who's a director in Velocity Legal's disputes and insolvency practice.

Firstly, welcome to the show, Demian.

Thank you, Andrew.

Demian, you're a commercial litigator, insolvency expert with more than 20 years of experience. And I understand today we're going to be talking about distressed businesses, what options are available for them?

0:37
And I'd love to get your thoughts on this, but it seems like this is a very timely discussion because we've had cost of living rises, interest rate rises, ATO cracking down on debt.

So it's probably a growth area after the years of COVID where things possibly were pretty flat.

0:54
Yeah. So it's timely because with the onset of the pandemic, the ATO put a pause on collecting tax obligations.

And this resulted in a lot of businesses using the tax office as a finance facility to keep operating.

1:16
Often operating businesses that aren't profitable might not be viable. And people almost forgot about tax, and the ATO almost forgot about how to collect tax.

And it's actually taken a few years for the ATO to reskill and start collecting outstanding tax obligations, and it's now doing it in a very aggressive manner.

1:45
Yeah. I think that's a good summary.

Well, in this part of the three-part series we're going to be talking about insolvency and its consequences, and really start going through a few of these terms, maybe sort of clarifying some myths or misnomers, and then we'll be building on that.

And in Part 2 and 3, we'll be talking about what options are available, and specifically about pre-pack transactions in Part 3.

2:08
So let's just start with a bit of a Dorothy Dixer, that is, what is insolvency?

Insolvency. Better to go back and, what is solvency?

I've actually brought the Corporations Act definition because it's quite pithy yet somewhat deceptive in its simplicity.

2:28
So what the Corporations Act says is the person is solvent if and only if the person is able to pay all the person's debts as and when they become due and payable.

The Corporations Act then helpfully says the person who is not solvent is insolvent.

2:50
Now, if you apply that definition in a literal way, a very large number of companies would be insolvent.

So, say for example, you have a company that has the rent due tomorrow.

3:09
There's a customer who's late in payment of the bill. It's expected the customer will pay next week.

Yeah.

And that'll put the company in funds to pay the rent. On one view, the company can't pay the debt that falls due tomorrow.

3:26
The Corporations Act says you have to be able to pay all your debts as and when they fall due, so maybe for a few days it's insolvent.

Not really though. So happily, courts take much more, necessarily, courts take a practical approach and they distinguish between short-term cash flow difficulties, which almost all companies face from time to time.

3:54
The credit crunch, unexpected customers who don't pay.

That's right.

Exactly. So the courts distinguish between short-term cash flow difficulties that the company is able to manage and actual insolvency.

4:10
And I guess it's, you know, where's the line?

Well, it's probably where the line is.

Yeah. So, for example, with the company that can't pay the rent that's due tomorrow, if as a matter of practical reality, the landlord's not going to say boo when the rent is a week late, there's really no issue of insolvency.

4:32
Yeah. So it's a little bit more nuanced, subjective, whether or not you can pay all your debts when they are due and payable, but there is actually some flexibility there.

Yeah, kind of, mostly. But you mostly can, and overall you can.

4:48
You're going to be able to keep operating without being locked out of premises, without being sued.

And how do the financial statements and your statement of assets and liabilities, does that have any relevance at all to this, about what's on the balance sheet for the company?

5:06
Yes, there's a bit of a misnomer that's referred to as balance sheet insolvency.

That's when people say that a company's balance sheet insolvent if its liabilities exceed assets, meaning it's got negative net assets.

5:27
Now there are a lot of companies like that, particularly in a startup phase where, you know, the business owners are lending money to the company to operate.

And if you look at the balance sheet, because the company's been trading at a loss initially, there'll often be negative equity.

5:50
But the reality is that the business owners are not going to call up their loans and bring the whole thing to an end.

I guess there's business loans. Let's say the business owners kicked in $100,000 and until such time as a business owner says to the company, which is kind of one and the same, but this is a company, I want my $100,000 back.

6:12
It's not due and payable, right?

So even the simplest of loans, well the simplest of loans are repayable on demand.

But even if there's a loan agreement that provides for the loan to be due at the end of June or the end of December, and the company can't afford to pay it, if the business owner isn't going to press for payment, which is a way of financially supporting the company, then the company would not be considered insolvent, I guess.

6:45
It's a bit more practical.

It's a practical sort of, it's a practical reality situation.

Yeah.

Other way as well, where there's sort of a positive balance, but it's insolvent.

Yes. For example, you could have assets on the balance sheet that are very difficult to realise or convert into cash within a sufficient time frame to pay debts that need to be paid.

7:15
So in fact, you can have a company with a very valuable property and debts that are just a fraction of that value, but no one's willing to lend to the company to pay the debts.

7:31
The property can't be sold quickly.

So that would be a case where the company can be insolvent despite having an ostensibly healthy balance sheet.

So.

7:46
That is, in assessing whether or not a company is insolvent, it sounds like a range of factors that you need to consider and essentially a bit of a judgement call needs to say, right.

Yeah. It's a judgement call and it is a matter of fact because if the company is insolvent, it is insolvent.

8:09
Yes, if it's solvent, it's solvent.

But working out the true position involves evaluating a number of factors.

I suppose going back to the balance sheet, you might look at current assets against current liabilities.

8:25
So that's assets that can be realised within the next 12 months compared to liabilities that have to be paid within the next 12 months.

That can be an indicator.

If bank finance isn't available, related parties don't have the willingness or ability to put money in.

8:45
Say, for example, the company's been operating at a loss for a significant time and it doesn't look like it's going to get any better.

That would be an indicator of insolvency.

The receipt of solicitor's demands.

Yes.

9:01
Being sued.

Yeah.

Paying superannuation contributions. Not filing tax lodgements on time.

But, yeah, a few of those and you're probably insolvent.

Yes.

Yeah. Well then I guess it's worth moving on to, okay, well, what if we're insolvent?

9:16
What are the consequences of a company being insolvent? And particularly what kind of blowback could that have for directors personally? Because that's, I mean, all the business owners, usually the big concern is less so about the assets of the company, but the personal assets.

9:35
So probably the most common strategy that's used is to pretend the company's not insolvent.

Head in the sand approach.

And kind of juggling creditors, paying them a little bit so they'll keep supplying, trying to keep the wheels moving, hoping that sales will improve, contract with a big customer will get signed.

10:06
And sometimes that happens. Often it doesn't.

The most common approach, because in the vast majority of cases, especially small companies, liquidators work out that the company was insolvent well before action was taken to appoint an administrator or appoint a liquidator.

10:30
And that's the next point really, those consequences for a director are, what, and how can they be made liable for insolvent operations of a company?

The classic liability is directors being made personally liable for insolvent trading.

10:52
And the way that works is directors have a positive duty to prevent a company from incurring debts that it's not going to be able to pay.

So that's kind of the paradigm case.

Often also directors will have signed guarantees to banks, to suppliers.

11:13
In the case of suppliers, often those guarantees have buried within them a charging clause that enables the creditor to lodge caveats against the director's home.

And then there's Director Penalty Notices.

11:32
Yes, with the ATO.

With the ATO. For PAYG.

Yeah, and now GST. Well, not now GST, but GST is the most recent addition to that list as well, isn't it?

Yeah, so it started with just superannuation and PAYG amounts, and directors could avoid liability by appointing an administrator or liquidator within the period allowed in the Director Penalty Notice, which is 21 days after the date of the notice.

12:07
The ATO and the government became concerned that actually a lot of employees' superannuation contributions weren't being paid, and directors were being given a get out of jail free card by appointing an administrator.

12:24
They were never really forced.

So the position with unpaid superannuation contributions is that the company doesn't pay them, the directors are personally liable.

They call that a lockdown amount.

Yes.

12:40
In a Director Penalty Notice.

No way out.

No way out, yeah.

With PAYG withholding amounts and now GST, there's still a way out by appointing an administrator, but that only applies where the company's been filing its BAS statements.

13:01
And it's been done within the 21 days.

Yeah. So, so long as the GST liabilities, the PAYG liabilities were reported to the tax office within three months after they fell due, that'll be considered a non-lockdown amount.

13:20
So when the Director Penalty Notice arrives, the director can appoint an administrator or a liquidator within 21 days and then they're not personally liable for those amounts.

And I suppose the takeaway from that is even if you can't afford to pay the GST, even if you can't afford to pay the PAYG amounts, still file your statements.

13:45
Yeah. And make sure you pay superannuation contributions as a priority.

And I guess you'd say this, when the business owner maybe takes that approach, thinking we'll trade out of this, but maybe they put their head in the sand about lodging or they fall behind on BAS statements.

14:01
It's really compounding the problem, isn't it?

It compounds the picture. And I totally understand not wanting to look at this horrible picture.

And it just gets worse and worse and worse and more unappealing to look at and address as time goes on.

14:19
But that said, the head in the sand approach eventually will end badly.

Yeah. And the GST is a big change as well because the amounts, you know, that transact with the GST system are quite large.

And that came in during COVID. So, you know, understand, people's attention was elsewhere.

14:37
And now we've got, you get a business, the directors receive a DPN and the consequences are higher.

And I've also heard, you would have heard stories about this as well, of getting the DPN. The company then enters into a payment arrangement with the ATO.

14:52
It thinks, oh, this is all good for the moment. But that is, if it goes belly up, the DPN is still valid.

Yes, and the ATO is now less amenable to payment arrangements than it used to be.

So the ATO basically deliberately adopted a very lax approach when the pandemic hit because they were concerned about having a bloodbath.

15:21
It was companies going broke, people losing their jobs, but now it's sort of gone. The pendulum has swung the other way.

I read a headline the other day that there was $35 billion of debt for small businesses. So the vast majority of this big debt amount is not big companies, it's small businesses.

15:42
It's mostly small businesses, yeah.

Yeah, well, that's the ATO. What about other creditors and what demands or rights they might have specifically?

Yeah, creditors can do statutory demands.

16:12
So that's a mechanism under the Corporations Act. A creditor who has a debt that's due and payable by the company can serve a demand giving the company 21 days to pay.

If the company disputes the demand, they can apply to the court to set it aside on the grounds of a genuine dispute.

16:32
But assuming that doesn't happen, or if the application to set the demand aside fails, the company then has to pay.

If the company doesn't pay, it's presumed insolvent for the purposes of a winding up application.

That would be a pretty effective mechanism.

And if you are chasing the debt or you're the company that gets one of these, are they pretty effective?

16:47
It's generally a last resort in terms of serving a statutory demand.

They do sometimes get, people misapprehend that it's a cheap, easy way to recover a debt that a company is disputing, and then that can really backfire.

17:06
But assuming you have, say, a judgment, an unpaid judgment, or the company's admitted that it's liable, etcetera, a demand can be the cleanest way to recover the debt.

If the company doesn't comply, then go back a step.

17:26
The creditor can apply to wind up the company.

The application gets advertised on the ASIC website. Other creditors learn about the proceeding.

They jump in at that stage as well.

17:43
Will they jump in?

So you don't really know at the first hearing date how many creditors are going to appear.

If you have enough money to pay all of them at that first hearing, then you pay them and the court will dismiss the winding up application by consent.

18:05
But if the company can't pay, then it sort of rolls forward.

The company can defend the winding up application on the basis that it says it's solvent.

There's a difference between just not wanting to pay and being unable to pay.

18:24
So if it's the case of the former, not wanting to pay, could you still get wound up in that situation?

No, no. Even if you don't have a good reason, if you've got plenty of money in the bank and you say.

18:39
I just don't want to pay it.

You're still solvent.

That one is about bank statements and the money in there exceeds the debt.

Yeah, interesting.

But that said, the court will want compelling evidence that a company's solvent, and this usually requires a very detailed report from an accountant who's gone through the company's books.

19:04
Yeah. Probably not a good use of time or money.

It's not a good use of time or money.

Yeah, yeah. Well, they've been really enlightening, Demian.

We've talked about insolvency, what it is, what it's not.

I've learned that you're insolvent when you're not solvent.

19:21
Also the consequences of that, consequences for directors.

We've talked also about the rights of the ATO, things like Director Penalty Notices, and the rights of other creditors, creditor statutory demands and things of that nature.

So I want to thank you for being part of this part of this series.

19:36
In Part 2, we're going to be discussing what formal insolvency processes are available to business owners, and really keen to pick up the conversation in Part 2.

Thanks, Demian.

Thank you, Andrew.

This podcast in no way constitutes legal advice. It is general in nature and is the opinion of the author only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this podcast.

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