ASIC and the Federal Government are extremely concerned about illegal phoenix activity by directors.
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A Phoenix transaction typically involves the illegal transfer of the assets from one company (usually with overwhelming debt) into another (without debt), for little or no consideration, for the purpose of avoiding or defeating the claims of creditors.
While the assets and business operations are transferred into the new company for little or no money, the debts remain in the old company.
The creditors of the old company have no direct recourse against the new company that now holds the assets. Creditors may only attack the old company and seek to have a liquidator appointed who will then investigate the alleged phoenix transaction.
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Liquidators will investigate and report phoenix transactions
Once a liquidator is appointed, alleged phoenix transactions will investigated and reported to both creditors and the ASIC. A phoenix transaction is illegal. It is designed to leave no assets or funds available in the old company and should never be contemplated.
Liquidators will report an alleged phoenix transaction
Liquidators who encounter phoenix transactions have a number of options. First, they may seek creditor assistance and funding. A liquidator may also make a claim for funding under the ASIC Assetless Administration Fund – a fund designed to enable liquidators to report and take action against directors.
Liquidators will report breaches of directors duties
An illegal phoenix transaction is a breach of directors duties in terms of breaching the duty of:
Directors that engage in illegal phoenix transactions may be liable for:
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