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Corporate corruption in New Zealand – “Banning badly behaving company directors”

August 21, 2015 by SPCS 2 Comments

Coming up on Sunday morning 23 August 2015 on Radio NZ Insight with Wallace Chapman (just after 8 am news):

radio new zealand

A very important programme dealing with:

(1) Increased powers being sought by the Ministry of Business Innovation & Employment (MBIE) to ban “badly behaving company directors” who engage in illegal “Phoenixing”: i.e. the creation (incorporation) of new companies just prior to putting a failed company into liquidation, and the illegal transferring of assets from that old (failed) company into the new entities with similar names to the liquidated company, with the whole process carried out by the director(s) to specifically avoid paying creditors (including IRD), fines, and employee entitlements (unpaid wages and arrears). Under this “trick” [CORRUPT PRACTICE] the illegal “phoenix company” re-emerges from the ‘ashes’ of the old (failed) company (now in liquidation) with the same director(s) or shadow director, plus a very similar trading name and corporate structure. Note: “Phoenixing”, as Liquidator Damian Grant of Waterstone Insolvers, Auckland, points out to Radio NZ, can be legal, but only in a case where the phoenix company purchases “all the assets of the old company directly from the liquidator”, and all shareholders and creditors are privy to all the financial transactions that are carried out involving the assets, which must be done in a fair and transparent process.

(2) Insolvency Law. The setting up of a Register of registered Insolvers (Liquidators). David Milne, Manager of the Northern Labour Sector Inspectorate of MBIE admits to RadioNZ that “9 out of 10 Liquidators” refuse to cooperate with their MBIE audits of companies that have been put into liquidations. [This confirms the findings of SPCS that CORPORATE CORRUPTION is rife in New Zealand]. Milne reports that when the Employment Relations Authority ascertains through its investigations, prompted by employee complaints, that considerable arrears and unpaid wages are owing; rogue company directors just put the company into liquidation, “ripping the assets out of the old company” and transferring them into the “phoenix company”; and carry on with business as usual under the veil of the new corporate structure. Milne confirms that MBIE investigations (audit processes) always commence with “open source researching” – determining the identity and relationships of the various company officials etc. based on the Companies Office online records. [Unfortunately, the problem with this approach, as the SPCS has found following a six year investigation, is that these records are in significant ways “shambolic” and lacking in integrity].

(3) May Moncur, an employment advocate with Employment Disputes Services, in dealing with her clients, has reported that unscrupulous company directors are putting their companies into liquidation to specifically avoid paying significant settlement fines awarded by the Employment Relations Authority Tribunal to workers for unpaid wages etc. The assets from the liquidated company are transferred promptly into the phoenix company so there is no money available to pay the fine. With the cooperation of an unscrupulous liquidator the company director continues his rip off of new unsuspecting employees under a new corporate veil – brazenly using an almost identical company name.

(4) Minister of Commerce and Consumer Affairs – the Hon. Paul Goldsmith – concedes that there is a need for “robust legislation to deal with rogue directors. However, he makes no mention of the need for active and effective enforcement of the law and/or the need to resource enforcement agencies to effectively enforce the law. The Minister points out that in the last three-and-half years the MBIE has only made eight prosecutions of company directors for engaging in illegal “phoenixing” under “Phoenix Law” and of these there were only five convictions. He sees this “low number” of prosecutions as clear proof that there is no no need to expand the powers of the MBIE to deal with illegal “Phoenixing”, despite the fact that MBIW says it is “on the rise”. If there is to be a compulsory public register of registered Insolvers (Liquidators) set up, he sees no need to look at changing any laws dealing with “Phoenixing” until after the register regime has been operating for at least one year. The Restructuring Insolvency & Turnaround Association of New Zealand is currently engaging in public consultations as to the need for such a public register, in part to address the problem of unscrupulous liquidators.

Two links to Morning Report audios (Friday 21 August) promoting the coming Sunday programme:

http://www.radionz.co.nz/national/programmes/businessnews/audio/201767407/preventing-phoenix-companies

http://www.radionz.co.nz/national/programmes/morningreport/audio/201767434/phoenix-companies-leaving-workers-and-creditors-high-and-dry

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Filed Under: Enforcement Tagged With: corporate corruption, liquidation, liquidators, MBIE, phoenix company, Phoenix Law, Phoenixing, Radio New Zealand Insight

Court ruling on claw-backs by liquidators welcomed

February 20, 2015 by SPCS Leave a Comment

‘Common sense’ decision may prevent liquidators from re-claiming payments.

A Supreme Court ruling that clears up a contentious area of insolvency law could put a hand brake on liquidators trying to claw back funds from creditors paid out before a company collapses.

One liquidator who was not involved in the case, Damien Grant, said yesterday’s decision meant there would be less distributions from liquidations in the future.

A lawyer who was on the losing side of the litigation, Kevin Bond, said directors of insolvent companies may now be encouraged to make preferential payments to creditors who have leverage over them.

On the other hand, representatives of the construction industry hailed the Supreme Court’s judgment as a “victory for common sense” that would come as a relief to “thousands of businesses”.

The unanimous decision from Justices Sian Elias, John McGrath, William Young, Susan Glazebrook and Terence Arnold concerned voidable transactions, where liquidators claw back money from individuals or companies who were paid up to two years prior to their appointment.

It follows a Court of Appeal decision from 2013 that caused many people concern, particularly in the construction industry.

That ruling, according to those in the sector, meant that unless a contractor or subcontractor was paid upfront for work done for a company later found to be insolvent, the funds could be recovered by a liquidator. [Read more…]

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Filed Under: Enforcement Tagged With: insolvency, insolvent company, liquidators, viodable transactions

Subbies await Supreme Court call on voidable transactions

January 17, 2015 by SPCS Leave a Comment

Subcontractors are calling for the Supreme Court to end a nine-month wait for a decision on the ability of liquidators to claw back payments made by insolvent companies to contractors.

In mid-2013, the Court of Appeal ruled that when companies went bust, liquidators could claw back payments made by an insolvent company up to two years before its collapse, a practice known as voidable transactions.

This could include where a sub-contractor had been paid for work they had completed.

Shocked contractors appealed the decision to the Supreme Court.

The Supreme Court heard the case in March last year, but no decision has been published.

Graham Burke, president of the Specialist Trade Contractors Federation which represents more than 5700 contracting firms, said: “While this decision is pending, thousands of businesses remain in a no-man’s land with regard to voidable transactions.”

“Under the Court of Appeal ruling, any service you supply and are paid for afterwards is a voidable transaction.

“That affects every business in New Zealand which provides goods and services on account. However, the building trade is particularly aware of this because there are more insolvencies in the construction sector than in other sector.”

Voidable transactions are intended to ensure all creditors of insolvent companies are treated equally, but Burke said funds clawed back from subcontractors ended up being paid out to pay liquidators’ fees, employees of the company that went bust, and the Inland Revenue.

Contractors, who are generally unsecured creditors, are at the bottom of the heap when it comes to being paid in a liquidation, Burke said.

“The current ruling means that contractors who complete a contract properly and have paid their suppliers and staff, cannot have certainty that payments they have received will not be recovered,” Burke said.

Until the Court of Appeal decision, it had been thought that providing a contractor was paid for work done, then they were safe from having money clawed back.

No longer being able to rely on that created a great deal of uncertainty, and was upsetting business planning, he said.

“This makes it difficult for small business to plan to invest and grow,” Burke said.

“The contracting market is currently buoyant but there have been some high profile insolvencies in recent years. The issue of voidable transactions needs to be resolved so businesses can make decisions about investing in areas such as new equipment, training staff and expanding their businesses to meet the growing demand.”

If the Supreme Court does not reverse the Court of Appeal’s judgement, the federation would campaign for politicians to draft new laws.

“If we don’t get a favourable decision, we need a political one,” Burke said.

“It’s not only about our industry. The whole economy needs certainty.”

The Court of Appeal judgement “flies in the face of natural justice”, he said.

Taupo-based Mike Field, owner of Fences & Kerbs, was one of the contractor companies involved in the Supreme Court case.

Fences & Kerbs did concreting and steel foundation work on a pipeline being built for Contact Energy at Wairakei by Contract Engineering in 2010, and was paid $58,000 in two instalments between August and September of that year.

Contract Engineering went into liquidation in July 2011 and its liquidators served a notice to set aside the payments to Fences & Kerbs.

Field’s case, grouped together with two others, were the subject of the Supreme Court hearing, and if the Court of Appeal decision is allowed to stand, Fences & Kerbs will have to pay back the $58,000.

“What I have decided is they can all go to hell as far as I am concerned,” Field said.

“The only hope we have got is that the Supreme Court likes sticking it to the Court of Appeal. It’s over-turned that many decisions.”

The Supreme Court is currently closed and unavailable for comment.

Source

Stuff News Businessday. Story by Rob Stock. Thursday January 15, 2015.

http://www.stuff.co.nz/business/better-business/65065594/Subbies-await-Supreme-Court-call-on-voidable-transactions

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Filed Under: Enforcement Tagged With: claw back payments, liquidation, liquidators, voidable transactions

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