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A company is usually placed into receivership by a secured lender who holds a registered charge or mortgage debenture. In some cases, a Court can also appoint a company receiver.
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Understanding the Receivership Process
A company is usually placed into receivership by a secured lender (usually a bank or a financial institution) who holds a registered charge or mortgage debenture however in rare circumstances, a Court can also appoint a company receiver.
A Receiver is appointed by a Secured Lender or the Court
A company receiver is generally appointed to ensure repayment of the security holders outstanding debt and the receiver achieves this by taking control of company assets and selling all or part of the assets subject to a charge.
The company receiver reports and accounts directly to the secured lender and must pay any money recovered from the company’s assets to the secured lender. The only exception to this is that in certain circumstances the company receiver is required to pay employee entitlements before payment to the charge holder.
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A Receiver acts for the Secured Lender – not all creditors
In short, the company receiver acts in the best interest of the secured creditor – not the unsecured creditors.
A company receiver is not required to liaise with general unsecured creditors but is required to lodge a Report as to the company’s affairs with the ASIC within 30 days of his appointment as receiver.
A Receiver does have a Duty of Care in the sale of assets
The receiver must take reasonable care to ensure market value or the best price reasonably obtainable is achieved for the sale of company assets.
A company receiver usually has very extensive powers and in most cases when a company goes into receivership a company receiver will have the power to:
Trade on or sell off a business
- trade-on the business with a view to selling it as a going concern; or
- break-up the business and sell individual assets.
Receivers powers are contained in the Charge Documentation
The receivers’ powers will always be contained in the registered charge or debenture documents that must be registered with the Australian Securities and Investments Commission (ASIC). Copies of any charge or debenture can be obtained by contacting any ASIC business centre on 131 450.
The directors’ powers are suspended upon the appointment of a company receiver and the receiver will assume total control of the company. A director will not be able to bind the company any in any way after a company receiver has been appointed.
Did you know? A company may be placed into Liquidation or Voluntary Administration while in Receivership
A company can be placed into liquidation notwithstanding a company receiver has been appointed, however, the receiver will have full control of the company and its assets notwithstanding the liquidators appointment.
If the secured creditor is paid out in full, any surplus is payable to the liquidator. If no liquidator has been appointed the surplus, after the secured creditor has been satisfied, is paid to the company.