PIR Newsletter – March 2020

COVID-19 update

On 4 March 2020, the Australian Government made changes to the Bankruptcy law as part of the economic response to the Coronavirus. These temporary changes will be in place for six months from 25 March 2020.

Guidance on when the ‘20 business days’ period starts - Initial Remuneration Notices

AFSA Regulation has been asked to provide guidance to trustees on their obligation to send an initial remuneration notice (IRN) in circumstances where a sequestration order (SO) has been made and the regulated debtor (the bankrupt) has attempted to file a Statement of Affairs (SOA) with the Official Receiver (OR), but it has been returned as incomplete.

ATO Update: Deliberate liquidation: Tale of the illegal phoenix

Illegal phoenix activity is a wicked problem that has a significant impact on the Australian economy; estimated to cost as much as $5 billion each year, with much of that impact borne by other honest businesses and employees.

The Foots Case: Costs Orders and Bankruptcy

A number of candidates for registration as trustees have shown in the committee interview process that they have not heard of “Foots Case” and do not understand that amounts payable under costs orders made after the date of bankruptcy are not provable in bankruptcy.

Annulments & Drawing of Remuneration and Costs - s.153A

Reviews undertaken of trustee remuneration over the last 12 months have shown that some trustees are drawing remuneration and/or costs after an annulment has been effected under s.153A of the Bankruptcy Act 1966.

Mental health - How a national insolvency firm created a new program to benefit employees and clients

Driven by a desire to do more to help clients suffering mental ill-health and offer improved support for their employees exposed to ‘second-hand’ stress, national independent insolvency firm Jirsch Sutherland turned to Beyond Blue to help create a dynamic new mental health program.

Improving AFSA’s online resources

Over the last year, AFSA has been working on a variety of projects to improve the online resources available on our website. These resources have been created to provide more information about the options and consequences of personal insolvency, and to help people make informed financial decisions.

Case summary: Shepard (Trustee) v Behman [2019] FCA 18

BANKRUPTCY AND INSOLVENCY – transfer of property before bankruptcy – application by trustee for relief under ss120 and 121 of the Bankruptcy Act 1966 (Cth) and s37A of the Conveyancing Act 1919 (NSW) in relation to a Deed of Settlement and transfer of property –whether intention to defeat creditors – whether consideration was less than the market value – whether transfer made in good faith – consideration of the transferor’s “main purpose”.

Case summary: Boensch v Pascoe [2019] HCA 49 (13 December 2019)

Mr Boensch claimed that he held a house in Rydalmere (the property) as a trustee for his two children. He claimed that Mr Pascoe, as his trustee in bankruptcy, held no vested interest in the property. Mr Pascoe disputed the claim that a trust existed at general law and argued the alleged trust was void as it fell within the terms of s120 or s121, or both, of the Bankruptcy Act 1966 (Cth).

Recent prosecution: Victorian man convicted after concealing $250k transfer to friend

On 20 February 2020, Mr Robert John Wilson was convicted in the Dandenong Magistrates’ Court after he pleaded guilty to two charges under Commonwealth bankruptcy law.

Recent prosecution: QLD man convicted for hiding and spending $140k

On 28 February 2020, Queensland man Mr Nicholas Gannon was sentenced in the Caboolture Magistrates Court after he pleaded guilty to two charges under Commonwealth bankruptcy law.

Recent prosecution: Conviction and fine for two bankrupts who failed to file Statement of Affairs

Two bankrupts have been convicted and fined for failing to submit their Statement of Affairs to the personal insolvency regulator, the Australian Financial Security Authority (AFSA).

Your questions answered

In January, we asked you to consider sending us questions about regulation and the role of AFSA.