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Topic 5
Corporate Governance and
Management of Companies
Part 4
DUTY TO AVOID INSOLVENT TRADING
Content
什么样的法定职责限定所欠公司债务的董事及其他人士来防止在无力偿债情况下保护运营商的利益
违反这一义务的后果是
可能解除公司面纱
也可能采取适当的抗辩
What statutory duties are owed by company directors and others to prevent insolvent trading
The consequences of breaching this duty
Possible lifting of the corporate veil
The defences that might apply
Reading
Lipton and Herzberg, Chapters 12 and 13
www.asic.gov.au
From L & H, Ch 13.5
INSOLVENT TRADING
1. Directors of insolvent companies ( L & H, Chapter 13.5)
Directors owe a duty not to prejudice the interests of their company’s creditors
The CA requires directors to avoid insolvent trading
Legal actions for insolvent trading are often brought against directors of an insolvent company that owes money to unsecured creditors ( via an administrator or liquidator who sues the directors)
2. Provisions
Topic
Legislation
Common Law
Textbook reference
Duty not to prejudice creditor’s interests
- Creditor interests are paramount- when?
Walker v Wimborne (1976)
Nicholson v Permakraft (1985)
13.5.10
13.5.15
Duty to prevent insolvent trading
S588G (1)
and (2)
Hawkins v Bank of China (1992) (13.5.55)
ASIC v Plymin (2003) (13.5.60) list of factors or indicators of insolvency
13.5.40- 75
13.5.70
Defences
S 588H
4 defences
Defences To Insolvent Trading Contravention include:
抗辩无力偿债情况下运营商违反包括：
小号588H（2）：有合理的理由证明该公司的偿付能力;
小号588H（3）董事有合理理由相信（代表团）
一个称职的和可靠的人，让他/她充分了解公司的偿付能力，
预期这些信息的基础上，为该公司效力，并会继续如此
s.588H（4）董事因为生病或其他好的理由没有参与该公司的管理招致该债项时，
588H（5）董事已采取一切合理步骤，来防止为该公司承担的债务
s 588H (2) : the director had reasonable grounds to expect and did expect the company was solvent and would remain solvent; or
s 588H (3)the director reasonably believed (delegation)
a competent and reliable person was keeping him/her adequately informed about the company’s solvency, and
on the basis of that information expected that the company was solvent and would remain so
s.588H(4) the director did not take part in management of the company when the debt was incurred because of illness or other good reason
588H(5) the director took all reasonable steps to prevent the company incurring the debt
13.5.80+
Consequences
-Director can be ordered to pay compensation: s1317S
-Civil penalties apply; pay ASIC
-Director can be disqualified
-Criminal liability if breach of s588G was dishonest
Corporate veil is lifted as a result of these measures
13.5.105+
Director's duty to http://www.ukassignment.org/gjswglprevent insolvent trading by company
Section 588G
Director's duty to prevent insolvent trading by company
(1) This section applies if:
(a) a person is a director of a company at the time when the company incurs a debt; and
(b) the company is insolvent at that time, or becomes insolvent by incurring that debt, or by incurring
at that time debts including that debt; and
(c) at that time, there are reasonable grounds for suspecting that the company is insolvent, or would
so become insolvent, as the case may be; and
(d) that time is at or after the commencement of this Act.
(2) By failing to prevent the company from incurring the debt, the person contravenes this section if:
(a) the person is aware at that time that there are such grounds for so suspecting; or
(b) a reasonable person in a like position in a company in the company's circumstances would be so
aware.
Note: This subsection is a civil penalty provision (see subsection 1317E(1)).
(1A) For the purposes of this section, if a company takes action set out in column 2 of the following table, it incurs a debt at the time set out in column 3.
When debts are incurred [operative table]
Action of company When debt is incurred
1 paying a dividend when the dividend is paid or, if the company has a constitution that provides for the declaration of dividends, when the dividend is declared
2 making a reduction of share capital to which Division 1 of Part 2J.1 applies (other than a reduction that consists only of the cancellation of a share or shares for no consideration) when the reduction takes effect
3 buying back shares (even if the consideration is not a sum certain in money) when the buy back agreement is entered into
4 redeeming redeemable preference shares that are redeemable at its option when the company exercises the option
5 issuing redeemable preference shares that are redeemable otherwise than at its option when the shares are issued
6 financially assisting a person to acquire shares (or units of shares) in itself or a holding company when the agreement to provide the assistance is entered into or, if there is no agreement, when the assistance is provided
7 entering into an uncommercial transaction (within the meaning of section 588FB) other than one that a court orders, or a prescribed agency directs, the company to enter into when the transaction is entered into
(3) A person commits an offence if:
(a) a company incurs a debt at a particular time; and
(aa) at that time, a person is a director of the company; and
(b) the company is insolvent at that time, or becomes insolvent by incurring that debt, or by incurring at that time debts including that debt; and
(c) the person suspected at the time when the company incurred the debt that the company was insolvent or would become insolvent as a result of incurring that debt or other debts (as in paragraph (1)(b)); and
(d) the person's failure to prevent the company incurring the debt was dishonest.
applies in relation to a contravention of this section.
S 588H
Defences
(1) This section has effect for the purposes of proceedings for a contravention of subsection 588G(2) in relation to the incurring of a debt (including proceedings under section 588M in relation to the incurring of the debt).
(2) It is a defence if it is proved that, at the time when the debt was incurred, the person had reasonable grounds to expect, and did expect, that the company was solvent at that time and would remain solvent even if it incurred that debt and any other debts that it incurred at that time.
(3) Without limiting the generality of subsection (2), it is a defence if it is proved that, at the time when the debt was incurred, the person:
(a) had reasonable grounds to believe, and did believe:
(i) that a competent and reliable person (the other person ) was responsible for providing to
the first mentioned person adequate information about whether the company was solvent; and
(ii) that the other person was fulfilling that responsibility; and
(b) expected, on the basis of information provided to the first mentioned person by the other person, that the company was solvent at that time and would remain solvent even if it incurred that debt and any other debts that it incurred at that time.
(4) If the person was a director of the company at the time when the debt was incurred, it is a defence if it is proved that, because of illness or for some other good reason, he or she did not take part at that time in the management of the company.
(5) It is a defence if it is proved that the person took all reasonable steps to prevent the company from incurring the debt.
(6) In determining whether a defence under subsection (5) has been proved, the matters to which regard is to be had include, but are not limited to:
(a) any action the person took with a view to appointing an administrator of the company; and
(b) when that action was taken; and
(c) the results of that action.
BULAW2611
Topic 4, Part 4: Corporate Governance and Management of Companies (insolvent trading)
November 2010
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